Due Diligence. (A) Buyer shall have the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement. (B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close. (C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure. (D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller. (E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies. (F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so. (G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement. (H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment. (I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of Real Estate (Bard Holding, Inc.), Sale and Purchase Agreement (Bard Holding, Inc.)
Due Diligence. Buyer has conducted sufficient due diligence with respect to the transactions contemplated by this Agreement and the Ancillary Agreements, with its own staff as well as with the use of sophisticated outside counsel and experts, in order to evaluate the associated benefits and inherent risks, and enters into this Agreement and the Ancillary Agreements on an arm’s length basis. Buyer believes in good faith that it is capable of satisfying its obligations under this Agreement and the other agreements, instruments and documents contemplated by this Agreement or the Ancillary Agreements, and is capable of consummating these transactions. Seller has provided Buyer with such access to the personnel, properties, premises and, to Buyer’s Knowledge, the records of Seller as Buyer has requested, subject only to the express limitations set forth in Section 5.3, and in conducting its due diligence with such assistance and cooperation of Seller, Buyer has made its best efforts in making all appropriate, prudent and commercially reasonable inquiries (Aand follow-up inquiries) of Seller’s personnel, properties, premises and records, again subject only to the express limitations set forth in Section 5.3. In negotiating and entering into this Agreement and agreeing to consummate the transactions contemplated by this Agreement, Buyer shall have has relied solely upon its own investigation and the rightexpress representations and warranties of Seller set forth in Article 3 or in any Ancillary Agreement, after the Contract Date and upon advance notice neither Seller nor any of its officers, directors, shareholders, employees, Affiliates, agents or other Representatives has made any representation or warranty as to Seller, the Purchased Assets, this Agreement, the Ancillary Agreements or the Projects, except as expressly set forth in this Agreement or in any Ancillary Agreement. To the fullest extent permitted by Law, neither Seller nor any of Seller’s officers, directors, shareholders, employees, Affiliates, Affiliated Interests, agents or other Representatives shall have any liability to access the Premises to inspectBuyer for any information made available to, investigate and conduct due diligence as to matters relating to the Premisesor statements made to, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and Buyer (or any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultantagents, agentofficers, contractor directors, employees, Affiliates or other who Buyer desires to enter Representatives), other than the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement express obligation of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with indemnify the Buyer in its dealings with governmental agencies during Group following the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, Closing to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do soset forth in Article 9.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Asset Sale Agreement, Asset Sale Agreement (NewPage CORP)
Due Diligence. Buyer will have until the expiration of the thirtieth day after delivery of the signed "Agreement" (A) Buyer shall have the right, after the Contract Date "Inspection and upon advance notice to SellerFeasibility Study Period"), to access the Premises to inspect, investigate conduct all of its inspections and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and satisfy itself regarding title to the name of any consultantProperty, agent, contractor or other who and to inspect the Property. Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts indemnify and hold harmless for any loss or damage to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, Property or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure persons caused by Buyer or its attorneysagents arising out of such physical inspections of the Property. Buyer expressly acknowledges that the sale of the Property as provided for herein is made on an "AS IS" basis, lendersand such provision shall survive closing. Buyer may cancel this agreement for ANY REASON in its sole discretion by delivering a cancellation notice by certified mail, return receipt requested, or consultants; by personal delivery to Seller and escrow holder before the expiration of the Inspection and Feasibility Study Period or Inspection Period as defined in Section 16. Such notice shall be deemed effective only upon receipt by Seller. If this Agreement is not canceled as set forth herein, the First Payment shall be non-refundable unless Seller shall default hereunder. If Buyer cancels this Agreement as permitted under this Section or Section 16, except for any title insurance and/or escrow cancellation fees of the escrowee which will be paid by the Buyer, and any liabilities under sections 15(a)(iii) and 16(b) of this Agreement (ivwhich will survive), Buyer (after execution of such documents reasonably requested by Seller to evidence the termination hereof) is obtained by shall be returned its First Payment, and Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free will have absolutely no rights, claims or interest of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises type in connection with Buyer’s due diligence investigation the Property or this transaction, regardless of the Premisesany alleged conduct by Seller or anyone else. Buyer further agrees that before it or Unless Seller shall be in default of any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effectobligation hereunder, or will cause its consultants this Agreement is canceled by Buyer pursuant to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated hereinhereof, including without limitationif Buyer fails to make the Second Payment, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with be entitled to retain the First Payment and Buyer irrevocably will be deemed to have canceled this Agreement and relinquish all rights in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property. If this Agreement is not canceled and the Second Payment is made when required, which items, to the extent not already provided to Seller at the time all of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by Buyer's conditions and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money contingencies will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreementdeemed satisfied.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Purchase Agreement (Aei Real Estate Fund Xvi LTD Partnership), Purchase Agreement (Aei Real Estate Fund Xv LTD Partnership)
Due Diligence. Each Seller Party and Guarantor acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans and Contributed Assets and Seller Parties and Guarantor, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller Party and Guarantor agrees that (Aa) Buyer upon reasonable prior notice to Sellers and Guarantor unless an Event of Default shall have the rightoccurred, after the Contract Date and upon advance in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to Sellerexamine, to access the Premises to inspect, investigate and conduct due diligence as to matters make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans and Contributed Assets (the Premises“Due Diligence Documents”) in the possession or under the control of Sellers and/or Guarantor and/or the Custodian, including but not limited or (b) upon request, Sellers or Guarantor shall create and deliver to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten five (105) days Business Days of receiptsuch request, an electronic copy on CD or DVD, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Sellers and with Seller’s approval, Guarantor also shall make available to Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, a knowledgeable financial or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveysanswering questions respecting the Asset Files, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical Purchased Mortgage Loans and any other study Contributed Assets. Without limiting the generality of the Premises as foregoing, each Seller Party and Guarantor acknowledges that Buyer deems necessary. Seller will provide access may purchase Mortgage Loans from Sellers and enter into Transactions with respect to available REO Property based solely upon the information provided by Sellers or Guarantor to Buyer in the Asset Schedule and relevant documents the representations, warranties and recordscovenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Mortgage Loans and Contributed Assets purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re‑generating the information used to acquire such Purchased Mortgage Loans and Contributed Assets. Buyer has ninety (90) days from the Contract Date may underwrite such Purchased Mortgage Loans and Contributed Assets itself or engage a mutually agreed upon third party underwriter to complete their investigation perform such underwriting. Each Seller Party and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Guarantor agrees to cooperate with Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Purchased Mortgage Loans and Contributed Assets in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind such Seller Party and/or Guarantor. Each Seller Party and Guarantor further agrees that Sellers or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises Guarantor shall pay all out‑of‑pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation activities pursuant to this Section 19, such amount not to exceed the Due Diligence Cap per calendar year (“Due Diligence Costs”), unless an Event of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer Default shall have the right occurred and be continuing, at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after case such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer limit shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentapply.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement (PennyMac Mortgage Investment Trust), Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
Due Diligence. (Aa) Buyer For a period not to exceed ninety (90) days following the Effective Date of this Agreement (the “Due Diligence Period”), during normal business hours SPI shall have make the rightProperty available for inspection. If there is any term(s) or provision(s) that conflicts with the Agreements (as defined in subsection 1(s) hereof), after this Agreement shall control.
(b) Notwithstanding any other provision of this Section 3.1 and its subparagraphs, Renegy shall be solely responsible for conducting an independent investigation and verification of the Contract Date and upon advance notice to Seller, to access Environmental Condition of the Premises to Property. Renegy shall inspect, investigate review and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer otherwise perform whatever acts Renegy deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, Renegy’s sole cost and expense, to enter, or cause its approved agents and representatives to enter upon determine the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study condition of the Premises as Buyer deems necessaryProperty so that, after the Closing Date, Renegy may use, operate, repair and maintain the Property in its present location. Seller will provide access to available Renegy shall not test, collect or conduct environmental investigation of the Property or remove any soil, groundwater or other materials, until Renegy’s testing plans and relevant documents procedures have been approved in writing by SPI which approval shall not be unreasonably withheld, however, reasonable grounds for withholding such approval shall include, but not be limited to, potential exacerbation of Environmental Conditions and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementinterference with SPI’s operations.
(Bc) Buyer agrees that they will keep confidential Renegy’s investigation and not disclose to any third party except its attorneys, lenders, and consultants, any inspection of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in Property shall not unreasonably interfere with SPI’s business or operations on the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to closeProperty.
(Cd) The confidentiality obligation herein does not apply Renegy shall bear all of its own costs, expenses, liabilities and charges incurred in connection with its access to Property and in connection with any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer reviews, inspections or its attorneysinvestigations, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free pursuant to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosurethis Section 3.1.
(De) Buyer Renegy shall indemnify, defend, and hold harmless Seller from and against notify SPI no later than two (2) working days prior to any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation inspection of the PremisesProperty. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer SPI shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.have a representative accompany Renegy during each such inspection. 5 – AGREEMENT FOR ENVIRONMENTAL CONDITIONS
(Ef) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed Renegy shall, promptly upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals receipt by the appropriate governmental agencies.
(F) Buyer shall Renegy, provide to Seller SPI copies of all engineering plans, surveys, environmental site assessments, traffic generation reportsreports and studies, and all materials submitted with respect to environmental investigations also raw data, collected or received from any governmental entity prepared by or agency on behalf of Renegy in connection with Renegy’s due diligence or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided matters addressed in this AgreementSection 3.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Assignment and Assumption of Environmental Agreement (Laidlaw Energy Group, Inc.), Assignment and Assumption of Environmental Agreement (Laidlaw Energy Group, Inc.)
Due Diligence. At any time between the Effective Date and Closing, Redeveloper and Redeveloper’s agents, representatives and employees (Acollectively the “Entrants”) Buyer shall have the continuing right, on three (3) days prior notice to the Township (the “Entry Notice”), and at reasonable times, to enter the Township-Owned Property to carry out or perform any inspections, tests, investigations and studies (the “Entry Activities”) of the Township-Owned Property which Redeveloper deems necessary or appropriate for purposes of ascertaining the physical feasibility of redeveloping, or to survey, the Township-Owned Property. The Township agrees to reasonably cooperate with Redeveloper and Redeveloper’s professionals and consultants in making the Township-Owned Property available for such investigations and Entry Activities. Redeveloper’s Entry Notice shall set forth a date and time of entry, the identity of all persons and entities who shall enter upon the Property, the estimated duration of the entry, and a description of the anticipated Entry Activities to be performed during the entry and locations where the activities will be performed. The Township shall have the right, after but not the Contract Date and upon advance notice to Sellerobligation, to have representatives present during each such access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited Property in order to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsobserve all Entry Activities. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer Redeveloper shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter collect split samples from any samples taken by Entrants upon prior notice of same. All activities performed by the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer Entrants shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage undertaken in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence good and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintainworkmanlike manner, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or not cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining permanent damage to the Property. While performing the Entry Activities, which itemsthe Entrants shall exercise that degree of care and skill ordinarily exercised under similar circumstances by members of the environmental and engineering consulting professions, to as applicable, performing the extent not already provided to Seller at kind of Entry Activities being performed hereunder and practicing in the time same or similar locality during the same general period of any termination of this Agreementtime. Redeveloper shall pay for all Entry Activities performed, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreementcause its authorized consultants, agents, contractors, and subcontractors, as the case may be, to pay for all work, free and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) clear of all mechanic’s and construction liens and encumbrances. If the Entry Activities results in the discovery of handling of hazardous materials or any contamination, Redeveloper agrees that Entrants will use that degree of skill and care in exercising its rights under this Agreement that are consistent with prudent procedure under such circumstances. Redeveloper, at its own cost and expense, shall obtain all governmental approvals (local, state and federal) and any other approvals necessary for the Buyer’s investigationEntry Activities, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s including obtaining a ▇▇▇▇▇▇▇ Money -out of all utilities at the Property, prior to the commencement of any Entry Activities. The Township shall have no responsibility whatsoever for any damage to existing improvements, utilities, or communications systems caused as a result of work performed under this Agreement. Redeveloper shall provide to the Township evidence of insurance coverage in types and amounts reasonably acceptable to Township, prior to gaining access to the Township-Owned Property or conducting any tests or investigations thereon. All such insurance policies and declaration pages shall name the Township as an additional insured, and, prior to the initial entry contemplated by the section, Redeveloper shall provide the Township with declaration pages showing that it has been named as an additional insured. It is understood that Redeveloper’s right of entry under this Section will be returned (with interest)at Redeveloper’s sole risk, and both Buyer Redeveloper agrees to indemnify and Seller hold the Township, including its collective employees, officers, agents, and representatives, harmless against any and all damages, liability, claims, costs, obligations, payments, penalties, fines, expenses (including reasonable attorneys’ fees, engineering fees, or other professional fees) and judgments incurred by or asserted against Township or the Township-Owned Property arising out of or in connection with Redeveloper’s due diligence and Entry Activities at or on the Township-Owned Property, excluding, however, liability, claims, costs, or expenses arising out of existing violations of Environmental Laws or other Applicable Laws identified or discovered at the Township-Owned Property during the course of Redeveloper’s investigations but not caused by Redeveloper, and further excluding any damage, liability, claims, costs, or expenses caused by the Township’s own gross negligence or willful act or omission. Redeveloper shall further be relieved of responsible for restoring the Township-Owned Property following any further intrusive testing, sampling or similar activity. Redeveloper’s obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” Section shall survive delivery of the deed and Deed or any termination of this Agreement, if any.
Appears in 2 contracts
Due Diligence. From and after the date hereof through and including 5 p.m. eastern time on August 15, 2011 (Athe “Due Diligence Period”), Buyer shall have the right to examine, inspect and investigate the Property and other matters associated therewith, and, at Buyer’s sole and absolute discretion, to determine whether the Property is acceptable to Buyer and to obtain all necessary internal approvals. Seller shall permit Buyer, its engineers, analysts, contractors and agents to conduct non-invasive physical inspections of the Property, including the structural, electrical and mechanical aspects of the Improvements, the interiors of all buildings, supports, site work, foundations, soil, subsurface soils, drainage, seismic and other geological and topographical matters, location of asbestos, toxic substances, hazardous materials or wastes, if any, and any other non-invasive investigations as Buyer deems prudent or desirable with respect to the physical condition of the Property. Provided Buyer shall restore any damage resulting to the Property by reason thereof, Buyer shall also have the right to conduct minimally invasive testing of the Property associated with any existing asbestos and lead paint located on the Property and any Phase II environmental assessments recommended by any Phase I environmental site assessment of the Property obtained by Buyer, provided Buyer shall provide seller with not less than three (3) business days prior written notice of such testing. Such investigations may be made by Buyer and/or its agents during any normal business hours. Buyer shall also have the right to investigate all matters relating to the zoning, use and compliance with other applicable laws, which relate to the use and occupancy of the Property. Seller shall cooperate to assist Buyer in completing such inspections and special investigations and Seller shall also make available to Buyer (in an office of the Seller’s property management company) for review and copying by Buyer (at Buyer’s expense) copies of any property information in Seller’s possession, provided Seller makes no representation or warranty as to the accuracy or completeness of such information. Notwithstanding anything contained in this Section 3.1, Seller need not deliver or make available to Buyer Seller’s internal confidential memoranda, attorney-client privileged materials and other confidential materials. Buyer acknowledges that any and all of the items provided by or on behalf of Seller that are not otherwise known by or available to the public are proprietary and confidential in nature and are delivered to Buyer solely to assist Buyer in determining the feasibility of purchasing the Property. Buyer agrees not to disclose such non-public Due Diligence Items, or any of the provisions, terms or conditions thereof, to any party outside of Buyer’s organization other than its agents, consultants, attorneys, representatives, prospective partners and their counsel and prospective lenders and their counsel. Such physical inspections and investigations of the Property shall be conducted only upon no less than twenty-four (24) hours’ notice (which may be telephonic) to Seller and shall be conducted at such times and in such a manner as to minimize any unreasonable disruption to tenants upon the Property. Seller shall have the right, after but not the Contract Date and upon advance notice to Sellerobligation, to access the Premises to inspect, investigate and conduct due diligence as to matters relating accompany Buyer during such investigations and/or inspections. Anything contained herein to the Premisescontrary notwithstanding, Buyer shall not communicate (whether in person or by telephone) with any officials at environmental, zoning, assessment or other government agencies regarding the Property or the Seller by name without Seller’s prior written consent (which consent shall not be unreasonably withheld), with the exception that Buyer shall be entitled to obtain from the Government of York County, Virginia both a zoning letter from, and a response to a FOIA request for a “no-Building Code violations” letter. Seller (and, at Seller’s option and cost, Seller’s counsel) shall have the absolute right to be present at any meetings (including meetings conducted by telephone) with any governmental and quasi-governmental authorities and officials, including but not limited to the environmental conditionsany neighborhood commission members, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name whether at a formal or informal meeting. Purchaser shall provide copies of any consultantcorrespondence sent to or received from such officials, agentwithin two (2) business days after receipt or dispatch, contractor or other who Buyer desires to enter as the Premises for this purpose, with Buyer’s request that access be granted to such person or personscase may be. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer Purchaser shall not have the right thereafterto make any commitments to any such parties that are in any way binding on Seller or the Property. In addition, and notwithstanding the foregoing, Buyer and its agents and representatives shall: (a) not unreasonably disturb the tenants of the Improvements or unreasonably interfere with their use of the Real Property pursuant to their respective Leases; (b) not unreasonably interfere with the operation and maintenance of the Real Property; (c) not damage any part of the Property or any personal property owned or held by any tenant; (d) not injure or otherwise cause bodily harm to Seller, its agents, contractors and employees or any tenant; (e) promptly pay when due the costs of all tests, investigations and examinations done with regard to the Property; (f) not permit any liens to attach to the Property by reason of the exercise of its rights hereunder; (g) restore the Improvements and the surface of the Real Property to the condition in which the same was found before any such inspection or tests were undertaken; and (h) not reveal or disclose any information obtained during the Due Diligence Period concerning the Property to anyone outside Buyer’s organization other than its agents, consultants, attorneys, representatives, prospective partners and their counsel and prospective lenders and their counsel, except as may be required by applicable law. Buyer shall, at its own risk, sole cost and expense, comply with all applicable federal, state and local laws, statutes, rules, regulations, ordinances or policies in conducting its inspection of the Property and physical testing. Buyer shall, and does hereby agree to enterindemnify, or cause its approved agents defend and representatives to enter upon hold the Premises, upon advance notice to Seller, for the purpose of making surveysits partners, testsofficers, boringsdirectors, inspectionsemployees, investigationsagents, or conducting any architecturalattorneys and their respective successors and assigns, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damageclaims, personal injury, and/or death claimsdemands, suits, demandsobligations, payments, damages, losses, penalties, liabilities, damagescosts and expenses (including, expenses and costsbut not limited to, reasonable attorneys’ fees) caused by reason of Buyer’s or Buyer’s agents’ actions taken in, on or about the Property in the exercise of the inspection right granted pursuant to this Section 3.1, including, without limitation, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from i) claims made by any claim, suit, act, judgement, demand or which may be brought tenant against Seller relating in any way associated with the conducting of any activity upon the Premises for personal injury or property damage resulting from Buyer’s wrongful entry into such tenant’s premises in connection with Buyer’s review of the Property; provided that, in no event shall Buyer be liable for any diminution in value of the Property resulting from or in connection with the findings of Buyer’s due diligence investigation of the Premisesstudies pursuant to this Section 3.1 and (ii) Buyer’s obligations pursuant to this Section 3.1. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will shall obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence from a creditworthy company with a policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount limit of not less than Two million Million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in for the aggregate. Buyer further agrees that before it or any purposes of its consultants or contractors visit the Premises, Buyer shall procure obligations and maintainliabilities under this Section 3.1, and shall require its consultants and contractors deliver to procure and maintain Seller a certificate of such insurance policies in accordance with naming the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver additional insured, prior to Buyer’s physical inspections of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting PeriodProperty. This Agreement Section 3.1 shall survive the Close of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of Escrow and/or any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Paladin Realty Income Properties Inc)
Due Diligence. (A) 8.1 The Seller confirms that the Buyer shall have is entitled to conduct the rightbusiness, after the Contract Date financial, legal and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct tax due diligence as of the Target Companies (the „Due Diligence”).
8.2 The Seller shall cause the managements of the Target Companies to matters relating undertake all necessary actions to grant the PremisesBuyer and its advisors (subject to confidentiality undertakings) access to all requested information about each of the Target Companies and its activities reasonably deemed by the Buyer or its advisors necessary to conduct the Due Diligence. Scope of the Due Diligence will encompass, in particular, operational activities and financial statements of the Company for the past 3 (three) years (i.e. 2007, 2008 and 2009), including but not limited all the documents required in order to determine the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance Target Companies 2009 EBITDA. The scope of entry, written notice of Buyer’s intent to conduct due diligence will encompass material agreements with suppliers, clients, real estate leasing, material potential liabilities related to in particular due taxes and employees’ remuneration and other documents reasonably requested by the name Buyer. The Seller shall ensure that each of any consultantthe Target Companies discloses, agentwithin reasonable time, contractor all such information, documents or other who data, requested by the Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, advisors.
8.3 A data room established for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Periodwill be the Virtual Data Room (the „VDR”) unless extended by written agreement of Seller per section 2A of this agreementwith the pertinent, standard tool allowing the Buyer and its advisors to ask questions.
(B) Buyer agrees 8.4 The Seller is obligated to ensure that they will keep confidential the Due Diligence commences on April 12, 2010, i.e. by that date the VDR is established and not disclose the amount of documents, which as a standard are under examination in the transactions of similar type, sufficient to any third party except its attorneys, lenders, and consultants, any of commence the due diligence materials and any additional environmentalby the Buyer, and/or other studiesare stored in the VDR. The Buyer is entitled to continue its Due Diligence for the period of six consecutive weeks. If necessary to provide further disclosure to the Buyer, teststhe Seller may reopen the VDR after such period to allow further Due Diligence. Following the completion of the Restructuring Measures, reportsthe documents related to such Restructuring Measures shall be placed in the VDR, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during Parties shall agree the due diligence period by Buyer shall be provided timing of one additional week of Due Diligence and access to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises VDR for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings order to review such documents, which shall be completed prior to Closing Date.
8.5 The Seller shall provide the Buyer with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress an electronic copy (on a DVD or other media) of the necessary approvals by the appropriate governmental agencies.
VDR within 7 (F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21seven) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as following the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results completion of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned Due Diligence (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In i.e. Due Diligence covering also the event Buyer elects to proceed with the purchase examination of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentRestructuring Measures – Section 8.4 in fine).
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Preliminary Agreement on Sale of Shares, Preliminary Agreement on Sale of Shares (Central European Distribution Corp)
Due Diligence. (A) Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans and Seller, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Purchased Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, to review the servicing of the Purchased Mortgage Loans, or otherwise, and Seller agrees that upon reasonable prior written notice to a Responsible Officer of Seller, unless an Event of Default shall have the rightoccurred, after the Contract Date and upon advance in which case no notice is required, Buyer or its Authorized Representatives will be permitted during normal business hours to Sellerexamine, to access the Premises to inspect, investigate and make copies and extracts of the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Purchased Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Mortgage Loans from Seller and enter into additional Transactions with respect to the Purchased Mortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence as to matters relating review on a reasonable portion of the Purchased Mortgage Loans purchased in a Transaction, including, without limitation, ordering new credit reports and new appraisals on the related Mortgaged Properties with respect to the PremisesMortgage Loans and otherwise re-generating the information used to originate such Mortgage Loan, including but not limited which information may be used by Buyer to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that calculate Market Value. Buyer deems necessary; provided that Buyer delivers may underwrite such Purchased Mortgage Loans itself or engage a mutually agreed upon third party underwriter to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, providing Buyer with access to any of the due diligence materials and any additional environmentaldocuments, and/or other studiesrecords, testsagreements, reports, and other documents generated instruments or information relating to such Mortgage Loans in the due diligence activities possession, or related activities under the control, of Seller. Seller further agrees that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period Seller shall pay all out-of-pocket costs and expenses incurred by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposesactivities pursuant to this Section 20, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory amount not to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) exceed [***] per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Sellercalendar year.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement and Securities Contract (Home Point Capital Inc.), Master Repurchase Agreement (Home Point Capital Inc.)
Due Diligence. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans, Seller, Guarantor and each Servicer, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Purchased Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, to review the servicing of the Purchased Mortgage Loans, or otherwise, and Seller agrees that (Aa) Buyer shall have the right, after the Contract Date and upon advance reasonable prior notice to Seller, unless an Event of Default shall have occurred and be continuing, in which case no notice is required, Buyer or its Authorized Representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans (the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence PeriodDocuments”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it possession or any under the control of its consultants Seller and/or the Custodian, or contractors visit the Premises(b) upon request, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period create and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory deliver to Buyer or Sellerwithin three (3) Business Days of such request, or an unacceptable environmental concern is revealed, or Buyer is unable electronic copy via email to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money ▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Purchased Mortgage Loans. Seller shall also provide to Buyer all loan level due diligence conducted by a third-party on the Purchased Mortgage Loans. Such due diligence may be provided to Buyer after the Mortgage Loan is subject to a Transaction. Buyer will periodically review Seller’s loan level due diligence process and findings and may request additional loan level due diligence be returned (conducted if deemed necessary in its reasonable discretion. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller and enter into additional Transactions with interest)respect to the Purchased Mortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and both that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Mortgage Loans purchased in a Transaction, including, without limitation, ordering new credit reports and new appraisals on the related Mortgaged Properties with respect to the Purchased Mortgage Loans and otherwise re-generating the information used to originate such Purchased Mortgage Loan, which information may be used by Buyer and to calculate Market Value. Buyer may underwrite such Purchased Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. ▇▇▇▇▇▇ agrees to cooperate with Buyer or any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer with access to any documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller. Seller further agrees that Seller shall be relieved of any further obligations under pay all out-of-pocket costs and expenses incurred by Buyer in connection with ▇▇▇▇▇’s due diligence activities pursuant to this AgreementSection 20 in an amount not to exceed the Due Diligence Cap; provided, howeverthat, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer Due Diligence Cap shall not be entitled to any environmental indemnification regardless apply during the occurrence and continuance of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership an Event of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentDefault.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement and Securities Contract (Radian Group Inc), Master Repurchase Agreement and Securities Contract (Radian Group Inc)
Due Diligence. (A) Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Loans in the possession or under the control of Seller, any other servicer or subservicer and/or the Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Loan Files and the Purchased Loans. Seller acknowledges that, upon any determination by Buyer that a decrease in the Market Value of the Purchased Loan has occurred, Buyer has the right to request, at Seller’s expense, an Appraisal for any Mortgaged Property securing the Purchased Loan, not more frequently than once in any calendar year; provided, however, that Buyer shall have the rightright to request an additional Appraisal in the same calendar year, after and, if such Appraisal results in a determination by Buyer that a decrease in the Contract Date Market Value of the Purchased Loan has occurred, Seller shall reimburse Buyer for the costs and expenses related to such additional Appraisal. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon advance notice the information provided by Seller to SellerBuyer and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to access the Premises to inspect, investigate and conduct a partial or complete due diligence as review on some or all of the Purchased Loans. Buyer may underwrite such Purchased Loans itself or engage a third party underwriter to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts reasonably cooperate with Buyer and any third party underwriter reasonably acceptable to respond Seller in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, financial models, agreements, instruments or information relating to such request from Purchased Loans in the possession, or under the control, of Seller. Seller further agrees that Seller shall reimburse Buyer for any and all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 27 on or before the Purchase Date for any Purchased Loan or within ten (10) days of receipt, and with Seller’s approval, after Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting reject any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementprospective New Collateral.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement, Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Due Diligence. (Aa) Buyer shall have the rightSeller acknowledges that, after the Contract Date at reasonable times and upon advance reasonable notice to Seller, Buyer has the right to access the Premises to inspect, investigate and conduct perform continuing due diligence as to matters relating reviews with respect to the PremisesPurchased Assets, including but not limited to the environmental conditionsSeller Parties and Servicer for purposes of verifying compliance with the representations, zoningwarranties and specifications made hereunder, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsotherwise. Seller agrees to use its best efforts to respond to such request that upon reasonable prior written notice from Buyer within ten (10) days unless an Event of receiptDefault has occurred and is continuing, and with Seller’s approvalin which case no prior notice shall be required), Buyer Seller shall have the right thereafterprovide (or shall cause any other Seller Party or Servicer, at its own risk, cost and expenseas applicable, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide provide) reasonable access to available Buyer and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit agents, representatives or permitted assigns to the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to offices of Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it such other Seller Party or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this AgreementServicer, as the case may be, during normal business hours and Buyer shall provide permit them to examine, inspect, and make copies and extracts of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such consents Purchased Assets in the possession or other documentation as Seller shall request so that Seller may do sounder the control of such party.
(Gb) If Seller agrees that it shall, promptly upon reasonable request of Buyer, deliver (or shall cause to be delivered) to Buyer and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Buyer in accordance with Article 26(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Buyer and any of its agents, representatives or permitted assigns (i) in person at the results time of any inspection pursuant to Article 26(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required and there shall be no limitation on frequency), by phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about any of the Buyer’s investigationforegoing Persons, studyor any other matters relating to the Transaction Documents or any Transaction that Buyer wishes to discuss with such Person.
(d) Without limiting the generality of the foregoing, test or report are not satisfactory Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or Sellercomplete due diligence review on some or all of the Purchased Assets. Buyer may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting with respect to any individual Purchased Asset; provided, that with respect to any individual Purchased Asset as to which Buyer engages a third party underwriter, Seller shall not be responsible for payment or reimbursement of costs and expenses of such underwriter in excess of $2,000 per Purchased Asset during any twelve (12) consecutive month period. Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of any Seller Party or any Affiliate thereof.
(e) Seller hereby acknowledges and agrees that Buyer shall have the right to commission and order an unacceptable environmental concern is revealedAppraisal of any Mortgaged Property at any time and from time to time, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective responsible for the costs and expenses as provided incurred by Buyer in this Agreementobtaining such Appraisals once annually with any additional Appraisals to be ordered at Buyer’s sole cost and expense. Seller shall cooperate with Buyer in connection with the commission or order of any Appraisal by Buyer, and Seller shall use commercially reasonable efforts to cause the applicable Mortgagor to cooperate with Buyer in obtaining any such Appraisal, including, without limitation, by providing Buyer with access to the Mortgaged Property.
(Hf) In the event Seller agrees to reimburse Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If demand for any reason and all costs and expenses (including, without limitation, the purchase is not subsequently closed, then fees and expenses of counsel) incurred by Buyer shall grant Seller ownership of the final report by Buyer’s consultant, in connection with Seller having the right its due diligence activities pursuant to utilize the report as if Seller had commissioned the site assessmentthis Article 26.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement, Master Repurchase Agreement (Colony NorthStar Credit Real Estate, Inc.)
Due Diligence. (A) Buyer Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, after upon reasonable prior notice and during normal business hours, subject to Section 10(k), no more than one time during any 12-month period (unless a Servicer Termination Event has occurred and is continuing, in which case the Contract Date foregoing limitation of one examination during any 12-month period shall not be applicable), to conduct on-site inspection and upon advance notice to perform continuing on-site due diligence reviews of (x) Seller, to access the Premises to inspectincluding, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Sellerwithout limitation, for the purpose of making surveysverifying compliance with the representations, testswarranties and covenants made under the Program Documents, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical (y) the Servicing File and any other study of (z) the Premises as Buyer deems necessaryRelated Mortgage Loans. Seller will agrees promptly to provide Purchaser, Agent and their respective agents with access to available to, copies of and relevant documents extracts from any and all documents, records. Buyer has ninety , agreements, instruments or information (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysincluding, lenders, and consultantswithout limitation, any of the due diligence materials foregoing in computer data banks and computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Related Mortgage Loans or assets proposed to be sold hereunder in the possession, or under the control, of Seller. In addition, Seller shall also make available to Purchaser and/or Agent, upon reasonable prior notice and during normal business hours no more than one time during any additional environmental12-month period (unless a Servicer Termination Event has occurred and is continuing, in which case the foregoing limitation of one examination during any 12-month period shall not be applicable), a knowledgeable financial or accounting officer of Seller for the purpose of answering questions respecting the Related Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to Purchaser and/or other studiesAgent and the representations, tests, reportswarranties and covenants contained herein, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final reportPurchaser and/or Agent, analytical dataat its option, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right at any time to conduct itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the individual Related Mortgage Loans at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent expense of Seller.
(E) . Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones agrees to monitor Buyer’s progress reimburse Purchaser and/or Agent for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twentyreasonable out-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective of-pocket due diligence costs and expenses as provided incurred with one examination during any 12-month period (or in this Agreement.
(Hconnection with any additional examinations conducted following the occurrence and continuation of Servicer Termination Event) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled applicable) pursuant to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentthis Section 26.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Mortgage Loan Participation Purchase and Sale Agreement (loanDepot, Inc.), Mortgage Loan Participation Purchase and Sale Agreement (loanDepot, Inc.)
Due Diligence. (A) Each Seller acknowledges that Buyer shall have has the rightright to perform continuing due diligence reviews with respect to the Purchased Assets, after for purposes of verifying compliance with the Contract Date representations, warranties and specifications made hereunder, or otherwise, and each Seller agrees that upon advance reasonable prior notice to such Seller, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the Premisespossession or under the control of such Seller, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and servicer or subservicer and/or the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsCustodian. Each Seller agrees to use its best efforts reimburse Buyer for any and all reasonable out-of-pocket costs and expenses incurred by Buyer with respect to respond the Purchased Assets during the term of this Agreement, which shall be paid by such Seller to such request from Buyer within ten five (105) days after receipt of receipt, and with Seller’s approval, an invoice therefor. Each Seller also shall make available to Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, a knowledgeable financial or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical answering questions respecting the Purchased Asset Files and any other study the Purchased Assets. Without limiting the generality of the Premises as foregoing, each Seller acknowledges that Buyer deems necessary. may enter into Transactions with such Seller will provide access based solely upon the information provided by such Seller to available Buyer and relevant documents the representations, warranties and recordscovenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Buyer has ninety (90) days from the Contract Date may underwrite such Purchased Assets itself or engage a third party underwriter to complete their investigation perform such underwriting. Each Seller agrees to cooperate with Buyer and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Purchased Assets in the possession, demandsor under the control, liabilities, damages, expenses of such Seller. Each Seller further agrees that such Seller shall reimburse Buyer for any and costs, (including attorney all reasonable attorneys’ fees, consultant fees costs and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises expenses incurred by Buyer in connection with Buyer’s continuing due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain on Eligible Assets and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of SellerPurchased Assets.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Capital Trust Inc), Master Repurchase Agreement (Capital Trust Inc)
Due Diligence. (A) Buyer From the date hereof and until and through the Closing or termination of this Agreement, the Company shall have the right(and shall cause each of its Subsidiaries to) afford to Progressive, after the Contract Date including its officers, employees, counsel, accountants and upon advance notice to Sellerother authorized representatives (“Progressive Representatives”), reasonable access, during normal business hours, to access all of the Premises Company's and its Subsidiaries' assets, properties, financial statements, papers, files, contracts, documents, books and records (including without limitation, the work papers of independent accountants) and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to inspectsuch Progressive Representatives, investigate upon request, all information concerning its organization, ownership, business, operations, assets, properties, personnel and conduct due diligence affairs as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxesmay reasonably be requested, and any other conditions that Buyer deems necessary; access to all of its personnel and representatives (including its independent accountants), provided that Buyer delivers neither the investigation conducted pursuant to Seller ten (10) days in advance of entrythis Section 7.3, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study nor Progressive's review of the Premises as Buyer deems necessary2014 Financial Statements and Closing Balance Sheet nor any resulting adjustments made therein, shall affect or be deemed to modify, compromise or negate any of the representations or warranties made by the Company or any of the Selling Shareholders under this Agreement. Seller will Notwithstanding the foregoing, the Company shall not be required to provide access to available and relevant documents and records. Buyer has ninety (90) days from or to disclose information where such access or disclosure could jeopardize the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written attorney-client privilege of the Company or any of its Subsidiaries or contravene applicable Law, any fiduciary duty or any binding confidentiality agreement or arrangement existing as of Seller per section 2A of this agreementthe date hereof.
(B) Buyer agrees that they Subject to the requirements of law, Progressive will keep confidential and not disclose to any third party except its attorneys, lendersconfidential, and consultantswill cause the Progressive Representatives to keep confidential, all information and documents obtained pursuant to this Section 7.3 except as otherwise consented to by the Company; provided, however, that Progressive shall not be precluded from making any disclosure which it deems required by law in connection with the transactions contemplated by this Agreement. If Progressive is required to disclose any information or documents pursuant to the immediately preceding sentence, Progressive shall promptly give written notice of such disclosure that is proposed to be made to the due diligence materials and any additional environmentalCompany so that the parties can work together to limit the disclosure to the greatest extent possible and, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails that Progressive is legally compelled to close.
(C) The confidentiality obligation herein does not apply disclose any information, to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court seek a protective order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind appropriate remedy or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agentboth. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are Progressive will collect and return to be delivered the Company all documents obtained pursuant to Seller within twenty-one (21) days after such termination. Such items may be retained this Section 7.3 or otherwise by and used by Seller after Closing it or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller Progressive Representatives then in their sole possession and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreementcopies thereof.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Progressive Corp/Oh/), Stock Purchase Agreement (Xl Group PLC)
Due Diligence. (A) Buyer Operating Partnership shall have the rightDue Diligence Period in which to examine and inspect the Property to determine, after in its sole discretion, whether the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating Property is satisfactory to the PremisesOperating Partnership. The Operating Partnership and other parties designated by it (collectively, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10“Operating Partnership’s Representatives”) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have reasonable access to all books and records for the right thereafter, at its own risk, cost and expense, to enter, Property that are in Contributor’s possession or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, control for the purpose of making conducting due diligence and shall, subject to the rights of tenants under Leases, be able to conduct and complete such surveys, testsinspections and tests (including reasonable intrusive inspection and sampling), as may be required by Operating Partnership, subject to the limitations set forth herein. In the course of its investigations, but subject to the provisions of Section 9.6, the Operating Partnership may make inquiries to third parties, including, without limitation, municipal, local and other government representatives. If any inspection or test damages the Property, Operating Partnership will promptly restore, at its sole expense, the Property to its condition immediately prior to any such inspection or test. Notwithstanding the foregoing, Operating Partnership shall not conduct any soil borings, inspectionscore samples or other invasive testing without the prior written consent of Contributor, investigationswhich consent by Contributor will not be unreasonably withheld, delayed or conducting any architecturalconditioned and which shall be deemed given by Contributor unless the Contributor provides written notice of objection to Operating Partnership, engineeringspecifying the basis for such objection, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety within three (903) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended after submission by Operating Partnership of a written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either partyrequest for such testing. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer Operating Partnership shall indemnify, defend, and hold Contributor harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise liens arising out of or result from its inspections as well as any claim, suit, act, judgement, demand or which may be brought claims asserted by third parties against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation Contributor (other than those arising out of the Premises. Buyer further agrees that before it gross negligence or willful misconduct of Contributor or any of its consultants visit the Premises Affiliates (other than Operating Partnership, its Subsidiaries and its Advisor)) to recover for due diligence purposes, it will obtain and maintain in full force and effect, personal injury or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in as a minimum amount result of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it Operating Partnership’s or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) daysOperating Partnership’s Representatives’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to entry onto the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer indemnity shall not be entitled extend to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify protect Contributor from any pre-existing liabilities for matters merely discovered by Operating Partnership (e.g., latent environmental concern or condition on contamination) so long as Operating Partnership’s actions do not intentionally exacerbate such pre-existing liability. Operating Partnership shall procure and continue in force from and after the Premises and/or adjustment to date Operating Partnership and Operating Partnership’s Representatives first enter the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subpartsProperty, and Exhibit “I” shall survive delivery of continuing throughout the deed and termination term of this Agreement, if anyliability insurance of not less than $1,000,000. Prior to entering the Property, Operating Partnership shall provide to Contributor a certificate of insurance evidencing such coverage and naming Contributor as an additional insured party. Operating Partnership’s obligations under this Section 2.1 shall survive the termination of this Agreement for a period of twelve (12) months.
Appears in 2 contracts
Sources: Contribution Agreement (Bluerock Residential Growth REIT, Inc.), Contribution Agreement (Bluerock Residential Growth REIT, Inc.)
Due Diligence. (A) Seller acknowledges that Buyer shall have has the rightright to perform continuing due diligence reviews with respect to the Purchased Loans, after for purposes of verifying compliance with the Contract Date representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon advance reasonable prior written notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and make copies and extracts of, the Purchased Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Loans in the possession or under the control of Seller, any other servicer or subservicer and/or Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering financial or accounting questions respecting the Purchased Loan Files and the Purchased Loans. Seller acknowledges and agrees that Buyer has the right to request, at Seller’s expense, a new Appraisal for any Mortgaged Property securing a Purchased Loan upon the occurrence of a Credit Event relating to such Purchased Loan or upon an Event of Default, but not more than once in any six (6) month period. Prior to the occurrence of either a Credit Event or a Facility Event of Default, Buyer may also request one (1) Appraisal during any consecutive twenty-four month period for the related Mortgaged Property at Seller’s expense. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence as review on some or all of the Purchased Loans. Buyer may underwrite such Purchased Loans itself or engage a third party underwriter to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from reasonably cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter reasonably acceptable to Seller in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsfinancial models, suitsagreements, demandsinstruments or information relating to such Purchased Loans in the possession, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind Seller (excluding internal rate of return or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller other internal metrics relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time profitability of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer Guarantor or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Due Diligence. (A) Buyer Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, after upon reasonable prior notice and during normal business hours, no more than one time during any 12-month period (unless an Event of Default has occurred and is continuing, in which case the Contract Date foregoing limitation of one examination during any 12-month period shall not be applicable), to conduct on-site inspection and upon advance notice to perform continuing on-site due diligence reviews of (x) Seller, to access the Premises to inspectincluding, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Sellerwithout limitation, for the purpose of making surveysverifying compliance with the representations, testswarranties and covenants made under the Program Documents, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical (y) the Servicing File and any other study of (z) the Premises as Buyer deems necessaryPurchased Assets. Seller will agrees promptly to provide Purchaser, Agent and their respective agents with access to available to, copies of and relevant documents extracts from any and all documents, records. Buyer has ninety , agreements, instruments or information (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysincluding, lenders, and consultantswithout limitation, any of the due diligence materials foregoing in computer data banks and computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. In addition, Seller shall also make available to Purchaser and/or Agent, upon reasonable prior notice and during normal business hours no more than one time during any additional environmental12-month period (unless an Event of Default has occurred and is continuing, in which case the foregoing limitation shall not be applicable), a knowledgeable financial or accounting officer of Seller for the purpose of answering questions respecting the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into Transactions with Seller based solely upon the information provided by Seller to Purchaser and/or other studiesAgent and the representations, tests, reportswarranties and covenants contained herein, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final reportPurchaser and/or Agent, analytical dataat its option, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right at any time to conduct itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the individual Mortgage Loans at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent expense of Seller.
(E) . Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones agrees to monitor Buyer’s progress reimburse Purchaser and/or Agent for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twentyreasonable out-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective of-pocket due diligence costs and expenses as provided incurred with one examination during any 12-month period (or in connection with any additional examinations conducted following the occurrence and continuation of an Event of Default) pursuant to this AgreementSection 37.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement (loanDepot, Inc.), Master Repurchase Agreement (loanDepot, Inc.)
Due Diligence. (Aa) Buyer Seller and the Company Entities have provided Purchaser with such access to the facilities, books, records and personnel of the Company Entities as Purchaser has deemed necessary and appropriate in order for Purchaser to investigate to its satisfaction the Business and properties of the Company Entities sufficiently to make an informed investment decision to purchase the Acquired Interests and to enter into this Agreement. Purchaser (either alone or together with its Representatives) has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its purchase of the Acquired Interests and is capable of bearing the economic risks of such purchase. Purchaser’s acceptance of the Acquired Interests on the Closing Date shall have the rightbe based upon its own investigation, after the Contract Date examination and determination with respect thereto as to all matters and without reliance upon advance notice any express or implied representations or warranties of any nature made by or on behalf of or imputed to Seller, to access except as expressly set forth in this Agreement. Notwithstanding the Premises to inspectforegoing, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days nothing in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer Section 4.12 shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated diminish the liability of Seller with the conducting respect to a breach of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it a representation or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided warranty expressly set forth in this Agreement.
(Hb) In Purchaser has relied solely on its own Representatives for its evaluation of its investment decision to purchase the event Buyer elects Acquired Interests and to proceed with enter into this Agreement and not on the purchase advice of Seller or its Representatives. Purchaser acknowledges that any financial projections that may have been provided to it are based on assumptions of future operating results based on assumptions about certain events (many of which are beyond the control of Seller). It understands that no assurances or representations can be given that the actual results of the Premises operations of any Company Entity will conform to the projected results for any period. Except with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled respect to any environmental indemnification regardless of whether the investigation, study, test representation or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of warranty expressly set forth in this Agreement, if anyPurchaser specifically acknowledges that no representation or warranty has been made, and that Purchaser has not relied on any representation or warranty, as to the accuracy of any projections, estimates or budgets, future revenues, future results from operations, future cash flows, the future condition of any Project or any assets of any Company Entity, the future financial condition of such Company Entity, or any other information or documents made available to Purchaser, its Affiliates or its or their respective Representatives.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Cleco Power LLC), Purchase and Sale Agreement (NRG Energy, Inc.)
Due Diligence. Seller acknowledges that ▇▇▇▇▇ has the right to perform continuing due diligence reviews with respect to the Purchased Assets, Seller Parties, Servicer (Ato the extent related to the services performed under the Servicing Agreement) and other parties which may be involved in or related to Transactions (collectively, “Third Party Transaction Parties”), as deemed appropriate by Buyer in its good faith discretion, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, and ▇▇▇▇▇▇ agrees that upon reasonable prior notice to Seller Parties or Servicer, as applicable, unless an Event of Default shall have the rightoccurred and be continuing, after the Contract Date and upon advance in which case no notice is required, Buyer or its authorized representatives will be permitted at reasonable times to Sellerexamine, to access the Premises to inspect, investigate and conduct due diligence as to matters make copies and extracts of, the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the Premises, including but not limited to possession or under the environmental conditions, zoning, governmental approvals, road access, property taxes, and control of any other conditions that Buyer deems necessarySeller Party or Servicer; provided however, that Buyer delivers to Seller ten (10) days in advance unless an Event of entry, written notice of Buyer’s intent to conduct due diligence Default has occurred and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approvalis continuing, Buyer shall have not conduct more than one (1) such review during any one (1) year period; provided further that any such review shall be subject to the right thereafter, at its own risk, cost and expense, Asset Diligence Fee Cap. Seller will use commercially reasonable efforts to enter, cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Seller shall cause Servicer to make available to Buyer a knowledgeable financial or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical answering questions respecting the Asset Files and any other study the Purchased Assets. Without limiting the generality of the Premises as foregoing, Seller acknowledges that Buyer deems necessary. may purchase Purchased Assets from Seller will provide access based solely upon the information provided by Seller to available Buyer in the Asset Schedule and relevant documents the representations, warranties and records. Buyer covenants contained herein, and that Buyer, at its option, has ninety (90) days from the Contract Date right at any time to cause Servicer or its agent to conduct a partial or complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any review on some or all of the due diligence materials Purchased Assets purchased in a Transaction, including, without limitation, ordering new Qualified Appraisals on the related Mortgaged Properties and any additional environmentalotherwise re-generating the information used to originate such Purchased Asset and reviewing intercreditor agreements, and/or other studiesproperty management agreements, testsformation documents of the property owners and their direct and indirect owners, financial statements, environmental and engineering reports, underlying title policies including owner’s and UCC-9 title insurance policies, legal opinions and other documents generated in as may be mutually agreed among Seller and Buyer. For the avoidance of doubt, Servicer’s obligation to provide such due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated to Buyer shall not preclude Buyer’s right to perform due diligence on the Purchased Assets prior to the Purchase Date and as necessary during the due diligence period term of the Agreement, as determined by Buyer shall be provided in is sole discretion, subject to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination terms of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the PremisesCommercial Mortgage Loan Documents. Buyer further agrees that before it may underwrite such Purchased Assets itself or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in engage a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones third party underwriter to monitor Buyer’s progress for submission of required applications during the Permitting Period perform such underwriting. Seller and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇▇ Money will be returned (agree to cooperate with interest)▇▇▇▇▇ and any third party underwriter in connection with such underwriting, and both including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller Parties or Servicer. Seller further agrees that it shall be relieved of any further obligations under this Agreement; providedpay, howeverto the extent Seller has received an invoice therefor, each party shall pay their respective all reasonable out-of-pocket costs and expenses as provided incurred by Buyer or its affiliates and designees in this Agreement.
(H) In the event Buyer elects to proceed connection with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right activities pursuant to utilize the report as if Seller had commissioned the site assessmentthis Section 21.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.), Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Due Diligence. Each Borrower acknowledges that the Lender has the right to perform continuing due diligence reviews with respect to the SBC Loans (Awhich may include obtaining appraisals and performing compliance, legal, credit and servicing file reviews) Buyer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and such Borrower agrees that upon reasonable (but no less than five (5) Business Day’s) prior notice to such Borrower (unless a Default shall have occurred, in which case no prior notice shall be required), the rightLender or its authorized representatives will be permitted during normal business hours to examine, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters make copies and extracts of, the SBA Loan Files and any and all documents, records, agreements, instruments or information relating to such SBC Loans in the Premises, including but not limited possession or under the control of such Borrower. Each Borrower also shall make available to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor Lender a knowledgeable financial or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical answering questions respecting the SBC Loan Files and any other study the SBC Loans. Without limiting the generality of the Premises as Buyer deems necessary. Seller will provide access foregoing, each Borrower acknowledges that the Lender may make Advances to available such Borrower based solely upon the information provided by such Borrower to the Lender in the Asset Tape and relevant documents the representations, warranties and records. Buyer covenants contained herein, and that the Lender, at its option, has ninety (90) days from the Contract Date right at any time to conduct a partial or complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement review on some or all of Seller per section 2A of this agreement.
(B) Buyer the SBC Loans securing such Advance, including, without limitation, ordering new credit reports and new appraisals on the related Pledged Properties and otherwise re-generating the information used to originate such SBC Loan. The Lender may underwrite such SBC Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Borrower agrees that they will keep confidential to cooperate with the Lender and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of providing the due diligence materials Lender and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such SBC Loans in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind such Borrower. Each Borrower further agrees that such Borrower shall reimburse the Lender for any and all reasonable and documented out-of-pocket costs and expenses incurred by the Lender in connection with the Lender’s activities pursuant to this Section 14; provided that prior to the occurrence of an Event of Default, such reimbursement shall not exceed $25,000 for any one (1) year period (excluding any reimbursement for due diligence conducted prior to the Effective Date or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way otherwise associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain initial closing and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination funding of this Loan Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so).
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Loan and Security Agreement (Sutherland Asset Management Corp), Master Loan and Security Agreement (Sutherland Asset Management Corp)
Due Diligence. (A) Buyer During the Option Period, Quark shall have the right, after the Contract Date and upon advance notice permit Novartis to Seller, to access the Premises to inspect, investigate and conduct a reasonable due diligence as investigation to matters enable Novartis to make an informed decision on whether or not to exercise the Option and its other rights hereunder. The key due diligence items shall include: (i) discussions with Quark on interactions with the Regulatory Authorities relating to the PremisesQuark Compounds and/or the Product and all past, current, and planned related clinical trials relating to Quark Compounds and/or Product, and review of all filings and correspondence with Regulatory Authorities relating to the Quark Compounds and/or the Product, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, minutes of meetings and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, telephone calls with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to Regulatory Authorities regarding such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereofmatters; (ii) is review of all pre-clinical and clinical data, and of the formulation composition and CMC sections of Regulatory Filings, in Buyer’s possession on the date hereofeach case, related to Quark Compounds and/or Product; (iii) becomes public after review of all contracts related to the date hereof other than due disclosure Development, manufacturing or Commercialization of the Quark Compounds or the Products, including all agreements entered into by Buyer or its attorneys, lenders, or consultantsQuark during the Option Period; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free review of all intellectual property relating to deliver such material free of any confidentiality obligationQuark Compounds and/or Product; or (v) is the subject of access to any court order or other legally-mandated disclosure.
(Dcontract research organization(s) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation contract manufacturer(s) of the Premises. Buyer further agrees that before it or any Quark Compounds of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injuryProduct, including death, and property damage in a minimum amount for purposes of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or changeconducting quality audits if requested by Novartis; and providing subcontractor coverage (if applicable). Buyer further agrees vi) any other items reasonably related to immediately provide a copy of Exhibit “I” to its insurance company Quark Compounds and/or insurance agent. Upon Seller’s consent, Buyer shall have Product or the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this AgreementLicense, as the case may be. Such due diligence items shall be provided by Quark promptly upon reasonable request by Novartis from time to time, and Buyer but shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results be subject to Third Party confidentiality obligations of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money Quark which will be returned clearly identified and listed before entering due diligence (provided that if information material to Novartis’s decision about exercising its Option is subject to a Third Party confidentiality obligation, Quark shall so advise Novartis and work with interestNovartis to enable Novartis to make its decision about Option exercise in an informed manner), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Option Agreement (Quark Pharmaceuticals Inc), Option Agreement (Quark Pharmaceuticals Inc)
Due Diligence. (Aa) Buyer shall have From the right, after date of this Agreement until 5:00 p.m. CST on the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating date which is four (4) days prior to the PremisesClosing Date (the “Examination Period”), including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use disclose and make available to Purchaser and its best efforts to respond to such request from Buyer within ten (10) days of receiptrepresentatives, and with at Seller’s approvaloffice and during Seller’s normal business hours, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, all records as may be reasonably requested by Purchaser for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date permitting Purchaser to complete their investigation and its due diligence (hereinafter “Due Diligence Period”) review. Purchaser shall maintain any such report in confidence, unless extended and to the extent otherwise required by written agreement of Seller per section 2A of this agreementApplicable Laws.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(Eb) Seller shall permit Purchaser to inspect its records only to the extent that it may do so without violating legal constraints or any obligation of confidence or other contractual commitment of Seller to a third party. Subject to the consent and cooperation of third parties, Seller will cooperate with the Buyer Purchaser in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones Purchaser’s reasonable efforts to monitor Buyerobtain, at Purchaser’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering planssole expense, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining such additional information relating to the Property, which itemsAssets as Purchaser may reasonably desire, to the extent not already provided in each case that Seller may do so without violating legal constraints or any obligation of confidence or other contractual commitment of Seller to a third party.
(c) As part of its pre-Closing diligence review, Purchaser will have the right to conduct a Phase I environmental assessment of the Properties, subject to the terms set forth in this Section 6.1. Purchaser’s Phase I environmental assessment must be conducted by an agent or representative of Purchaser reasonably acceptable to both Seller at the time of any termination and Purchaser. For purposes of this Agreement, are a “Phase I environmental assessment” means (i) a review of Seller’s and the government’s environmental records, (ii) the submission of pre-inspection questionnaires to be delivered Seller, (iii) a site visit to Seller within twenty-one (21) days after such termination. Such items may be retained visually inspect the Properties accompanied by and used by Seller after Closing or any termination a representative of this Agreement, as the case may beSeller, and Buyer (iv) interviews with corporate and site personnel of Seller. A Phase I environmental assessment does not include soil or groundwater sampling, subsurface testing or invasive sampling or testing of any kind, nor shall provide any such consents sampling or other documentation as Seller shall request so that Seller may do so.
(G) If testing be permitted without the results prior written approval of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, which approval shall not be unreasonably withheld or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and delayed. Seller shall be relieved entitled to receive a copy of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreementfinal Phase I inspection reports for the Properties.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Jones Energy, Inc.), Asset Purchase Agreement (Jones Energy, Inc.)
Due Diligence. Sellers agree to promptly provide Buyer and its agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (Aincluding, without limitation, any of the foregoing in computer data banks and computer software systems) Buyer shall have relating to its financial condition, the rightperformance of its obligations under the Program Documents, after the Contract Date and upon advance notice to Sellerdocuments contained in the Servicing File or the Purchased Loans in the possession, to access or under the Premises to inspectcontrol, investigate and conduct of the Servicers or Sellers or any financial information, loan portfolio performance information or any other due diligence as materials. In addition, Buyer has the right to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct perform continuing due diligence reviews of (i) Sellers and their respective Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of their obligations under the Program Documents and (ii) the Servicing File and the name of any consultant, agent, contractor Purchased Loans. Sellers shall also make available to Buyer a knowledgeable financial or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study answering questions respecting the Purchased Loans. Without limiting the generality of the Premises as foregoing, Sellers acknowledge that Buyer deems necessary. Seller will provide access shall enter into transactions with Sellers based solely upon the information provided by Sellers to available Buyer and relevant documents the representations, warranties and records. Buyer covenants contained herein, and that Buyer, at its option, has ninety the right at any time (90upon reasonable prior written notice and during normal business hours) days from the Contract Date to conduct a partial or complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement review on some or all of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential the Purchased Loans, including, without limitation, ordering new credit reports, new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Purchased Loans. Buyer’s conducting or failure to conduct any diligence shall not disclose to any third party except its attorneys, lenders, and consultants, affect any of the due diligence materials remedies of the Buyer hereunder. Sellers shall pay Buyer’s out-of-pocket costs and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period expenses incurred by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s any due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Sellerhereunder.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement (ECC Capital CORP), Master Repurchase Agreement (ECC Capital CORP)
Due Diligence. The Company will make available to each Selling Holder (Aand his counsel) Buyer and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel or auditors and will also make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall have be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the rightCompany's officers and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided, that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Contract Date Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its affiliates unless and until such information is made generally available to the public. Each Selling Holder of such Registrable Securities further agrees that it will, upon advance learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to Seller, to access the Premises to inspect, investigate Company and conduct due diligence as to matters relating to allow the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafterCompany, at its own risk, cost and expense, to enter, or cause its approved agents and representatives undertake appropriate action to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study prevent disclosure of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementRecords deemed confidential.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Registration Rights Agreement (Safety Components International Inc), Registration Rights Agreement (Safety Components International Inc)
Due Diligence. (A) Buyer Licensee shall have the right, after the Contract Date completed and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct be satisfied with its due diligence as investigation of Licensor pursuant to matters relating Paragraph 5.1.
7. Patent and Copyright Indemnity.
7.1. Licensor warrants that the use of the Licensed Products by the Licensee pursuant to the Premisesterms hereof shall not constitute an infringement of any existing patent, copyright or other right. Licensor hereby agrees to defend or settle any suit, proceeding or claim brought against the Licensee based on a claim that the use of the Licensed Products or any part thereof by the Licensee constitutes an infringement of any existing patent, copyright or other right. Licensor shall pay all damages or costs awarded against or expenses, including but not limited attorneys' fees, incurred by the Licensee in such suit, proceeding or claim.
7.2. In the event the Licensed Products or any part thereof shall be in Licensor's opinion likely to or shall become the environmental conditionssubject of a claim for patent, zoningcopyright, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purposeinfringement, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafterLicensor shall, at its own risk, cost option and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, procure for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study Licensee the right to continue using such affected part of the Premises as Buyer deems necessaryLicensed Products or modify such affected part to become non-infringing. Seller will provide access Should Licensor elect to available and relevant documents and records. Buyer has ninety (90) days from remove or modify such infringing part of the Contract Date Licensed Products, Licensor shall forthwith replace such part with a functionally equivalent non-infringing part or take other appropriate action to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementinsure that the Licensed Products conforms to the Specifications to the Licensee's satisfaction, without cost to the Licensee.
(B) Buyer agrees 7.3. In the event that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities Licensor shall refuse or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided unable to Seller within a reasonable time period prior to Closing. All due diligence materials supply or shall be delivered prevented from supplying the Licensed Products or any part thereof to Seller immediately upon the termination of the agreement Licensee, or in the event that the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation Licensee's continued use of the PremisesLicensed Products shall be prohibited or enjoined at any time, Licensor shall promptly replace all affected parts of the Licensed Products with functionally equivalent non-infringing parts or shall take such other action to insure that the Licensed Products conforms to the Specifications to the Licensee's satisfaction, without cost to the Licensee. Buyer further agrees NVID /s/ DJL IMS: /s/ MJR
7.4. Licensor warrants that before it or any the Licensee shall suffer no interruption of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, normal business activities or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price cycles as a result thereof. If for of any reason the purchase is not subsequently closedclaimed infringement, then Buyer shall grant Seller ownership any litigation referred to in Paragraph 7.1 hereof or any replacement of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentitems contemplated in Paragraphs 7.2 hereof.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: License Agreement (Innovative Medical Services), License Agreement (Innovative Medical Services)
Due Diligence. Seller shall, within seven (A7) Buyer shall have the right, business days after the Contract Date Effective Date, make available to Buyer true and upon advance notice to Sellercorrect copies of the documents, to access the Premises to inspect, investigate reports and conduct due diligence as to matters relating other materials and information pertaining to the PremisesAssets, including but not limited to which are in Seller’s possession or control and set forth on the environmental conditions, zoning, governmental approvals, road access, property taxes, attached Exhibit I (the “Seller Materials”). Buyer and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence agents, consultants, contractors, engineers and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer representatives shall thereafter have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study fifteen (15) days after receipt of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety Materials (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of to review the Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential Materials and not disclose to any third party except its attorneys, lenders, satisfy itself as to the feasibility and consultants, any acceptability of the due diligence materials Assets for the Buyer’s intended use and to enter onto each of the Properties to inspect and test the Properties and the other Assets including all buildings, improvements and equipment located thereon. In addition, the Seller shall permit Buyer and its authorized representatives reasonable access, upon forty-eight hours advance notice, to all of Seller’s premises, books, records, financial records and key personnel relative to the Retail Business and the Assets and shall cause its key personnel to furnish Buyer with such financial, operating and other information regarding the Seller’s Retail Business, Assets, contracts, liabilities, employees and properties as Buyer may reasonably request. Buyer’s analysis, inspection and testing may include, but shall not be limited to: soil analysis and borings, utility location availability, environmental testing and studies (including but not limited to Phase I and Phase II environmental site assessments), perc testing, geological testing, financial analysis, analysis for SEC (as hereinafter defined) compliance and any additional environmental, and/or and all other studies, tests, reportsstudies or analysis, which Buyer, in its sole discretion, deems appropriate (collectively, the “Property and other documents generated in the due diligence activities or related activities that may be conducted by either partyRetail Business Studies and Analysis”). Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless and defend Seller from and against any and all property damage, personal injury, and/or death claims, suits, demandsactions, liabilitiesexpenses, damagesjudgments, expenses other damages and costs, claims (including attorney and expert fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result ) resulting from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the PremisesProperty and Retail Business Studies and Analysis. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects makes borings or causes any physical change to proceed with the purchase Properties as a result of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”Property and Retail Business Studies and Analysis, Buyer shall not be entitled return the Properties to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or their condition on the Premises and/or adjustment prior to the purchase price Property and Retail Business Studies and Analysis. In the event that the Buyer determines that the results of any analysis, inspection or testing of the Seller Materials and/or Assets or the Property and Retail Business Studies and Analysis are unacceptable (the “Inspection Defects”), in Buyer’s sole discretion, Buyer may, by written notice delivered to the Seller prior to the expiration of the Due Diligence Period, either (i) terminate this Agreement; or (ii) waive as a result thereofcondition to Buyer’s obligations hereunder all Inspection Defects. If for any reason In the purchase event that this Agreement is not subsequently closedterminated by Buyer pursuant to this Section 6, then Buyer shall grant Seller ownership will deliver a copy of the final report by Buyer’s consultant, with Property and Retail Business Studies and Analysis and return all Seller having Materials to Seller and there shall be no further liability or obligation on any of the right to utilize the report as if parties hereto and this Agreement shall become null and void. The obligations of Seller had commissioned the site assessment.
(I) The provisions of and Buyer under this Section, its subparts, and Exhibit “I” Section 6 shall survive delivery of the deed and termination of this Agreement, if anyClosing.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Lehigh Gas Partners LP)
Due Diligence. 11.1 LICENSEE shall use good faith efforts to develop, obtain clinical approval for, manufacture, market and promote Licensed Products.
11.2 LICENSEE shall use good faith efforts to:
(Aa) Buyer market Licensed Products for sale within [+] of receiving regulatory approval by the appropriate governmental agency in each country in the world, including the U.S. Food and Drug Administration; and
(b) develop and construct manufacturing facilities suitable for producing commercial quantities of Licensed Products.
11.3 After an initial period of [+] from the effective date of this Agreement, LICENSOR may exclude a Field of Use or a portion thereof from the license granted herein pursuant to the provisions set forth in this section 11.3. In the event both LICENSORS agree that LICENSEE is not making reasonable efforts to commercialize a Field of Use of the Licensed Applications) and/or [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES Licensed Patent(s), the LICENSORS shall, by written notice to LICENSEE, signed by both LICENSORS, particularly identify that Field of Use. After such time notice is given, LICENSEE shall have a [+] period to file for Investigatory New Drug ("IND") approval if required for the rightidentified Field of Use and/or to pursue commercialization of identified Field of Use. In the event LICENSEE elects not to pursue IND approval as provided in writing to LICENSOR, after the Contract Date and upon advance notice to Seller, to access identified Field of Use or portion thereof shall be excluded from the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be license granted to such person or personsLICENSEE, (hereinafter referred to as "Excluded Field of Use"). Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receiptThereafter, and with Seller’s approval, Buyer the LICENSOR shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives grant licenses to enter upon the Premises, upon advance notice to Seller, third parties for the purpose Excluded Field of making surveysUse, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study subject to LICENSEE's right to match the third party offer to license the Excluded Field of Use within [+] written notice of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to closeoffer.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Exclusive License Agreement (Biomira CORP), Agreement and Plan of Reorganization (Biomira Inc)
Due Diligence. (A) Buyer Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, after upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (x) Seller and its Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of its obligations under the Contract Date Program Documents, and upon advance notice (y) the Servicing File and the Purchased Assets. Seller agrees promptly to provide Purchaser, Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the foregoing in computer data banks and computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Purchased Assets or assets proposed to access be sold hereunder in the Premises possession, or under the control, of Seller. In addition, Seller shall also make available to inspectPurchaser and/or Agent, investigate upon reasonable prior notice and conduct due diligence as during normal business hours, a knowledgeable financial or accounting officer of Seller for the purpose of answering questions respecting the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into Transactions with Seller based solely upon the information provided by Seller to matters relating to Purchaser and/or Agent and the Premisesrepresentations, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxeswarranties and covenants contained herein, and that Purchaser and/or Agent, at its option, shall have the right at any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent time to conduct due itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller’s representations, warranties and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personscovenants set forth herein. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, reimburse Purchaser and/or Agent for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and all reasonable out-of-pocket due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in incurred pursuant to this AgreementSection 36.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Home Point Capital Inc.), Master Repurchase Agreement (Home Point Capital Inc.)
Due Diligence. (A) Seller acknowledges that Buyer shall have has the rightright to perform continuing due diligence reviews with respect to the Purchased Assets, after for purposes of verifying compliance with the Contract Date representations, warranties and upon advance specifications made hereunder, or determining or re-determining the Asset Base for purposes of Section 4 of this Agreement, or otherwise, and Seller agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on any or all of the Purchased Assets, including, without limitation, ordering new credit reports and Appraisals on the applicable collateral and otherwise regenerating the information used to originate such Purchased Assets. Upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to any Purchased Asset in the Premisespossession or under the control of Seller, including but not limited any servicer or sub-servicer and/or Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the environmental conditionspurpose of answering questions respecting the Purchased Asset Files, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence the Servicing Records and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsPurchased Assets. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter designated by Buyer in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Purchased Assets in the possession, demandsor under the control, liabilitiesof such Seller. Subject to Section 12(g)(vi), damages, expenses Seller agrees to reimburse Buyer for any and costs, (including attorney all attorneys’ fees, consultant fees costs and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises expenses incurred by Buyer in connection with Buyer’s continuing due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposeson Eligible Assets and Purchased Assets, it will obtain and maintain in full force and effectincluding, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver the cost of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition annual updated Appraisals on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentMortgaged Properties and Diligence Fees.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Granite Point Mortgage Trust Inc.)
Due Diligence. (Aa) Buyer Purchaser and its agents, contractors, auditors, engineers, attorneys, employees, consultants, other representatives and potential lessees, partners, and lenders (collectively, “Purchaser Parties”) shall have the right, after right through Closing to enter upon the Contract Date and Real Property upon advance not less than one (1) business day’s prior notice to Seller, and to access perform, at Purchaser’s expense, such economic, surveying, engineering, topographic, environmental, marketing and other tests, studies and investigations as Purchaser may deem appropriate, in its sole and absolute discretion. Purchaser Parties shall have no discussions, correspondence, or other contact with any Hotel Employees unless coordinated in advance with Seller.
(b) Purchaser acknowledges its receipt of the Premises to inspect, investigate and conduct due diligence materials set forth on the Data Site as of the Effective Date. Seller shall, promptly upon request by Purchaser, make available to matters Purchaser on the Data Site, such additional materials which are in Seller’s possession or control relating to the PremisesProperty and the operation thereof which are reasonably requested by Purchaser from time to time. All documents and materials provided by Seller to Purchaser as of the Effective Date and, including but thereafter, pursuant to this Agreement and which such documents and materials are set forth on the Data Site, are referred to collectively herein as the “Submission Materials”. Except as expressly set forth in Article III, Purchaser acknowledges and agrees that the Submission Materials are provided without warranty or representation whatsoever.
(c) If, for any reason whatsoever (other than by reason of Seller’s default) Purchaser does not limited purchase the Property, upon written request by Seller, Purchaser shall (i) at Purchaser’s option, either deliver to Seller or destroy, all copies of all the environmental conditions, zoning, governmental approvals, road access, property taxes, Submission Materials and any other conditions that Buyer deems necessary; materials delivered by or on behalf of Seller to Purchaser or Purchaser Parties, together with any copies or reproductions of such documents or materials, or any summaries, abstracts (provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafterto retain any Submission Materials and any other materials delivered by or on behalf of Seller to Buyer as may be required pursuant to Buyer’s internal compliance or document retention policies or to the extent the same is created pursuant to 39148893v.18 Buyer’s automatic archival or back-up procedures, at its own riskprovided that such materials shall remain subject to the confidentiality requirements contained herein until such materials are deleted or destroyed), cost and expense(ii) deliver to Seller all third-party reports prepared by or for Purchaser or Purchaser Parties with respect to the Property; provided, however, (A) Purchaser shall not be obligated to enter, deliver to Seller any materials of a proprietary or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Sellerconfidential nature (such as, for the purpose purposes of making surveysexample only, testsany financial forecasts or market repositioning plans) prepared for Purchaser or Purchaser Parties in connection with the Property, borings(B) Seller acknowledges that any such materials delivered to Seller pursuant to the provisions of clause (ii) shall be without warranty or representation whatsoever, inspections, investigations, and (C) Purchaser shall not be required to return or conducting any architectural, engineering, structural, economic, environmental, mechanical destroy electronic copies or emailed copies which shall be retained by Purchaser in accordance with Purchaser’s corporate document retention policies and any other study of maintained in a confidential manner in accordance with the Premises as Buyer deems necessaryconfidentiality obligations under this Agreement. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A The provisions of this agreementSection 2.4(c) shall survive the termination of this Agreement.
(Bd) Buyer agrees that they will keep confidential Purchaser shall indemnify, hold harmless and not disclose to any third party except its attorneysdefend Seller, lendersManager, and consultantseach of their subsidiaries, any of the due diligence materials affiliate and any additional environmental, and/or other studies, tests, reports, parent companies and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that their respective (i) is public knowledge on the date hereof; officers, directors, partners, members, shareholders, employees and agents and, (ii) is in Buyer’s possession on successors and permitted assigns (collectively, the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys“Seller Indemnitees”), lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damageLiabilities, personal injuryto the extent caused by the inspections and due diligence undertaken at the Property by Purchaser or Purchaser Parties, INCLUDING ANY SUCH LOSS, DAMAGE OR CLAIM TO WHICH THE NEGLIGENCE OF SELLER AND/OR MANAGER MAY HAVE CONTRIBUTED, but excluding any such Liabilities, if and to the extent (x) caused or exacerbated by the gross negligence or reckless or willful misconduct of Seller and/or death claimsManager or their respective agents, suitscontractors, demandsauditors, liabilitiesengineers, damagesattorneys, expenses and costsemployees, (including attorney fees, consultant fees consultants and other legal costs), representatives or (y) caused by the mere discovery of whatever kind or nature whatsoever a preexisting condition. Purchaser and Seller understand and agree that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation on-site inspections of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain Property shall occur at reasonable times agreed upon by Seller and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars Purchaser after not less than one ($2,000,000.001) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ business day prior written notice upon policy cancellation or change; to Seller and providing subcontractor coverage (if applicable)shall be conducted so as not to interfere unreasonably with the operation of the Property and the use of the Property by the tenants and the guests of the Hotel. Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer Seller and Manager shall have the right to have a representative present during any such inspections. Purchaser shall not engage in any invasive testing (including without limitation air sampling, subsurface or groundwater tests, or any other environmental samplings) at the Hotel without the prior written consent of Seller thereto, which consent may be withheld or denied for any or no reason whatsoever; provided, however, Seller agrees that Purchaser may conduct or cause to be conducted (i) a standard ASTM Phase I environmental report, (ii) an ALTA survey (the “Updated Survey”), and (iii) standard non-invasive structural, physical condition, engineering and roof reports, but all of the foregoing only in accordance with this Agreement and other terms and conditions as may be reasonably required by Seller. Purchaser shall not permit any liens to attach to the Property by reason of such inspections. Solely to the extent damage to the Property is caused by Purchaser or Purchaser Parties, Purchaser shall (i) restore the Property, at its risk, cost and own expense, to enter substantially the same condition which existed prior to such damage, ordinary wear and tear excepted; and (ii) be responsible for and pay any and all liens by contractors, subcontractors, materialmen, or laborers performing the inspections or any other work on behalf of Purchaser or Purchaser Parties on or related to the Property. Should any such lien or claim be recorded, Purchaser will promptly obtain its full release (or bond over same) as to Seller and the Property. Purchaser shall maintain (or cause its approved agents to enter upon be maintained), for the Premises benefit of Purchaser, Seller, Seller’s Affiliates and managers insurance, on an occurrence basis in the amount of $1,000,000 combined single limit/$2,000,000 general aggregate for commercial general liability, workers compensation in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reportsstatutory requirements, and all materials submitted to or received from any governmental entity or agency umbrella insurance in the amount of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination$2,000,000. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer policy shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or 39148893v.18 name Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money ’s manager, and each of their subsidiaries, affiliate and parent companies, the respective successors and assigns of each of them, and the officers, directors, partners, members, shareholders, employees and agents of each of the foregoing, as additional insured parties, which insurance shall provide coverage against any claim for personal liability or property damage caused by Purchaser or Purchaser Parties in connection with such inspections. All policies that Purchaser is required to obtain under this Agreement shall be issued by insurance companies authorized to do business in the State of California with a Financial Strength Rating of not less than “A” and a Financial Size Category of not less than Class “X”, as rated by the most current available “Best’s” Insurance Reports. Purchaser shall deliver to Seller a certificate evidencing the commercial general liability and property damage insurance before conducting any inspections on the Property. The provisions of this Section 2.4(d) shall survive any termination of this Agreement and a closing of the transaction contemplated hereby.
(e) On or prior to the Effective Date, Seller has delivered to Purchaser, a title insurance commitment issued by the Title Company covering the Real Property, binding the Title Company to issue the Owner’s Title Policy together with legible copies (to the extent such legible copies are available) of all documents identified in such title insurance commitment as exceptions to title (collectively, the “Title Commitment”), with respect to the state of title to the Property. If Purchaser receives any revisions to the Title Commitment or the Updated Survey ordered by Purchaser that include items which did not appear in the prior versions of the Title Commitment or Updated Survey, as applicable, and which were not requested or caused by or on behalf of Purchaser, then Purchaser shall have five (5) business days following its receipt of any such revision to object to any new matters first appearing or otherwise shown thereon in a notice of objection to be delivered to Seller (each, a “New Objection”) (it being understood and agreed that the Closing Date shall not be adjourned in order to permit Purchaser to avail itself of the entire five (5) business day period). Other than with respect to Monetary Title Encumbrances (which will be returned covered by a Monetary Encumbrance Release at Closing) as otherwise specifically required in this Agreement, Seller shall not be obligated to incur any expenses or incur any liability to cure any New Objections. Seller shall notify Purchaser within three (3) business days after receipt of notice of New Objections (“Seller’s Response Period”) whether Seller, in its sole discretion, agrees to attempt to cure any of such New Objections (“Seller’s Response”). If Seller agrees in Seller’s Response to attempt to cure any of such New Objections, Seller shall use good faith efforts (without the obligation to expend any money or incur any liability except with interestregards to the release of Monetary Title Encumbrances (which will be covered by a Monetary Encumbrance Release at Closing) to cure such New Objections which Seller has agreed to cure on or before the Closing Date to the reasonable satisfaction of Purchaser. If Seller is unable to cure such New Objections on the Closing Date (excluding, for avoidance of doubt, any Monetary Title Encumbrances (which will be covered by a Monetary Encumbrance Release at Closing) the failure of which shall constitute a Seller default pursuant to Section 9.1 hereof), Purchaser may elect (1) to waive such New Objections without any abatement in the Purchase Price, or (2) to terminate this Agreement in which case the Deposit shall be promptly returned to Purchaser and both Buyer and the parties hereto shall be released from all further obligations hereunder, except those which expressly survive a termination of this Agreement. If Seller does not provide Seller’s Response to Purchaser within Seller’s Response Period, Seller shall be relieved deemed to have elected not to attempt to cure New Objections. If Seller elects in Seller’s Response not to attempt to cure all or any number of New Objections or if Seller is deemed to have elected not to attempt to cure New Objections pursuant to the preceding sentence, then within five (5) days after the expiration of Seller’s Response Period (it being understood and agreed that the Closing Date shall not be adjourned in order to permit Purchaser to avail itself of the entire five (5) day period, as 39148893v.18 applicable), Purchaser may elect (1) to waive any New Objections which Seller has elected or is deemed to have elected not to attempt to cure without any abatement in the Purchase Price, or (2) to terminate this Agreement in which case the Deposit shall be promptly returned to Purchaser and the parties hereto shall be released from all further obligations hereunder, except those which expressly survive a termination of this Agreement. In the event Purchaser does not provide to Seller notice of Purchaser’s election under the preceding sentence within such five (5) day period, Purchaser shall be deemed to have elected clause (1) of the preceding sentence. All title matters revealed by the Title Commitment and Updated Survey which (i) are not objected to by Purchaser as provided above (other than Monetary Title Encumbrances which will be covered by a Monetary Encumbrance Release at Closing), (ii) are waived or deemed waived by Purchaser as provided above, or (iii) were caused by or on behalf of Purchaser.
(f) Notwithstanding any provision in this Agreement to the contrary and for avoidance of doubt, Seller shall, at or prior to Closing, be obligated to either (i) pay and discharge, (ii) bond against in a manner legally sufficient to cause to be released, or (iii) indemnify or escrow money with or otherwise cause the Title Company to insure over, all Monetary Title Encumbrances (individually and collectively, a “Monetary Encumbrance Release”). Any failure of Seller to effectuate a Monetary Encumbrance Release of any further obligations Monetary Title Encumbrances at or prior to Closing shall constitute a default by Seller under Section 9.1 and Purchaser shall have the right to exercise all rights and remedies afforded to it on account thereof in accordance with this Agreement.
(g) Except as otherwise provided herein, Seller shall not, after the date of this Agreement, voluntarily subject the Real Property to any liens, encumbrances, covenants, conditions, restrictions, easements or other title matters or seek any zoning changes without Purchaser’s prior written consent, which consent may be given or withheld in Purchaser’s sole discretion; provided, however, each party the foregoing shall pay their respective costs not restrict Seller’s actions relating to obtaining the Ground Lessor Consent and expenses Estoppel or the Ground Lease Assignment as provided in contemplated pursuant to this Agreement. Any title matter recorded against the Property in violation of this Section 2.4(g) shall be deemed to be a Monetary Title Encumbrance for all purposes hereunder.
(Hh) In the event Buyer elects to proceed with the purchase As of the Premises with such environmental concern “AS ISEffective Date, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price Purchaser has received confirmation that Manager has approved Purchaser as a result thereof. If for any reason transferee of Operating Lessee under the purchase is not subsequently closed, then Buyer shall grant Seller ownership of Management Agreement (the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment“Manager Approval”).
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Braemar Hotels & Resorts Inc.)
Due Diligence. (A) Buyer Purchaser shall have the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent right to conduct due diligence and with respect to the name Assets as set forth in Section 1.4(d) below for a period of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten forty-five (1045) days following the Execution Date of receiptthis Agreement subject to the limitations and time frames set forth herein (as it pertains to the Assets, Sites, and with Seller’s approval, Buyer shall have Supply Sites the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Expiration Date”). In the event that the Purchaser determines that the results of any analysis, inspection or testing of any of the Assets, Sites or Supply Sites are unacceptable (each an “Inspection Defect”), in Purchaser’s reasonable discretion, Purchaser may, by written notice delivered to the Seller prior to the Due Diligence Expiration Date specifying each Inspection Defect in reasonable detail, either (i) designate each such Site or Supply Site with an Inspection Defect as a “Rejected Site” provided that in no event shall Purchaser designate more than a total of six (6) Sites or Supply Sites as a Rejected Site under this Section 1.4(a) or a Rejected Environmental Site under Section 5.2 below (“Maximum Rejected Sites”); or (ii) waive as a condition to Purchaser’s obligations hereunder some or all of the Inspection Defects. In the event that Purchaser timely notifies Seller that it has designated any Site or Supply Site as a Rejected Site, specifying each Inspection Defect in reasonable detail, Seller shall have fifteen (15) days following receipt of Purchaser’s notice (the “Inspection Defect Cure Period”) unless extended by written agreement to attempt to cure each of the applicable Inspection Defects. Seller per section 2A shall use commercially reasonable and good faith efforts to cure each of this agreement.
(B) Buyer agrees that they will keep confidential and the applicable Inspection Defects but Seller shall not disclose be required to any third party except its attorneys, lenders, and consultants, initiate litigation to do so. If Seller fails to cure any of the due diligence materials Inspection Defects applicable to a Rejected Site and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein Purchaser does not apply to waive any information that such uncured Inspection Defects, then (i) is public knowledge on the date hereof; each applicable Site or Supply Site shall remain designated as a Rejected Site, (ii) is in Buyer’s possession Purchaser and Seller shall proceed to Closing on the date hereof; remaining Sites and Supply Sites (subject to Sections 1.4(c), 1.8(c) and 5.2 below) as scheduled, (iii) becomes public after the date hereof other than due disclosure Purchase Price shall be reduced by Buyer or its attorneysthe amount allocated to each Rejected Site on Schedule 1.3(a), lenders, or consultants; and (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation a prorated portion of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will applicable to each Rejected Site (determined by reference to Schedule 1.3(a)) shall be returned (with interestretained by the Escrow Closing Agent. In regard to each of the Rejected Sites designated as Rejected Sites under this Section 1.4(a), and both Buyer and Seller the parties shall be relieved deemed to have agreed to defer the Closing of this Agreement with respect to each Rejected Site until the Seller has cured the Inspection Defect applicable to such Rejected Site, provided that if any further obligations such Inspection Defect is not cured within six (6) months after Closing, this Agreement shall be terminated with respect to each such Rejected Site and the portion of the Purchase Price allocated to each such Rejected Site on Schedule 1.3(a) shall be deemed to constitute a reduction of the Purchase Price and that portion of the ▇▇▇▇▇▇▇ Money applicable to each such Rejected Site shall be refunded to the Purchaser. Notwithstanding the foregoing, the Seller may have an additional six (6) months 7 to cure the Inspection Defects applicable to Rejected Sites under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided Section 1.4(a) by notifying Purchaser in this Agreement.
(H) In writing prior to the event Buyer elects to proceed with the purchase expiration of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentinitial six (6) month cure period.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. The Company will make available to each Selling ------------- Holder (Aand their counsel) Buyer and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel or auditors and will also make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained to represent any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall have be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the rightCompany's officers and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Company determines, after the Contract Date and upon advance notice to Sellerin good faith, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and which it notifies the Inspectors are confidential shall not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated disclosed by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that Inspectors unless (i) the disclosure of such Records is public knowledge on the date hereof; necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer requested or its attorneysrequired pursuant to oral questions, lendersinterrogatories, requests for information or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; documents or (v) is the subject of any court order a subpoena or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller order from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), a court of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents competent jurisdiction or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreementprocess; provided, however, each party that prior to any disclosure or release -------- ------- pursuant to clause (ii), the Inspectors shall pay their respective costs and expenses as provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided in this Agreement.
(H) In further, however, that if failing the event Buyer elects entry ---------------- ------- of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to proceed with disclose such Records, the purchase Inspectors may disclose that portion of the Premises with Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such environmental concern “AS ISRegistrable Securities agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, WHERE ISinsofar as is known to the Selling Holder after reasonable inquiry, WITH ALL FAULTS”is not prohibited from providing such information by a contractual, Buyer legal or fiduciary obligation to the Company) shall be deemed confidential and shall not be entitled to used by it as the basis for any environmental indemnification regardless market transactions in the securities of whether the investigation, study, test Company or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment its Affiliates unless and until such information is made generally available to the purchase price as public. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of such Records is sought in a result thereof. If for any reason court of competent jurisdiction, give notice to the purchase is not subsequently closedCompany and allow the Company, then Buyer shall grant Seller ownership at the Company's expense, to undertake appropriate action to prevent disclosure of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentRecords deemed confidential.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. (Aa) Seller acknowledges that Buyer shall have has the rightright to perform continuing due diligence reviews with respect to the Assets for purposes of verifying compliance with the representations, after warranties and specifications made hereunder, or otherwise (the Contract Date "Due Diligence Review"), and Seller agrees that upon advance prior notice to Seller, provided that, if a Default or Event of Default shall have occurred, then without notice, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and make copies and extracts of, the Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Assets in the possession or under the control of Seller, any other Servicer or subservicer and/or the Custodian. Seller agrees that Buyer may, at Buyer's sole expense and with prior notice to Seller, conduct additional Due Diligence Reviews. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files and the Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with the Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence as review on some or all of the Assets. Buyer may underwrite such Assets itself or engage a mutually agreed upon third party underwriter to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Assets in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever Seller. Seller further agrees that may arise out of or result from Seller shall reimburse Buyer for any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises and all out-of-pocket costs and expenses reasonably incurred by Buyer in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants 's activities pursuant to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Sellerthis Section 15.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, the Seller Party, Settlement Agents, Approved Investors and other parties which may be involved in or related to Transactions (Acollectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Seller Party agrees that upon reasonable (but not less than three (3) Buyer Business Days) prior notice to the Seller Party, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the rightMortgage Files and any and all documents, after records, agreements, instruments or information relating to such Mortgage Loans in the Contract Date possession or under the control of Seller Party. The Seller Party will use commercially reasonable efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Provided that no Event of Default has occurred and upon advance notice is continuing, Buyer agrees that it shall exercise best efforts, in the conduct of any such due diligence, to minimize any disruption to Seller’s normal course of business. The Seller Party shall also make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to access Buyer in the Premises Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to inspect, investigate and conduct a partial or complete due diligence as review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to matters relating originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with reasonable access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Mortgage Loans in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against the Seller. Seller relating in any way associated with the conducting of any activity upon the Premises Party further agrees to pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation activities pursuant to this Section 17 (the “Due Diligence Costs”); provided that Seller shall not be responsible for Due Diligence Costs in excess of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this AgreementDue Diligence Cap; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In that the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer Due Diligence Cap shall not be entitled to any environmental indemnification regardless apply upon the occurrence of whether the investigation, study, test a Default or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership Event of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentDefault.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
Due Diligence. (Ai) Seller acknowledges that Buyer shall have has the rightright to perform continuing due diligence reviews with respect to the Mortgage Loans, after Seller, Settlement Agents, Approved Investors and other parties which may be involved in or related to Transactions (collectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the Contract Date representations, warranties and specifications made hereunder, or otherwise, and Seller agree that upon advance reasonable prior notice to Seller, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the Premises, including but not limited to possession or under the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance control of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsSeller. Seller agrees to will use its best efforts to respond cause Third Party Transaction Parties to such request from cooperate with any due diligence requests of Buyer. Seller shall also make available to Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, a knowledgeable financial or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical answering questions respecting the Mortgage Files and any other study the Mortgage Loans. Without limiting the generality of the Premises as foregoing, Seller acknowledges that Buyer deems necessary. may purchase Mortgage Loans from Seller will provide access based solely upon the information provided by Seller to available Buyer in the Mortgage Loan Schedule and relevant documents the representations, warranties and records. Buyer covenants contained herein, and that Buyer, at its option, has ninety (90) days from the Contract Date right at any time to conduct a partial or complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any review on some or all of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage Mortgage Loans purchased in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the PremisesTransaction, Buyer shall procure and maintainincluding, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable)originate such Mortgage Loan. Buyer further agrees to immediately provide may underwrite such Mortgage Loans itself or engage a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones third party underwriter to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after perform such terminationunderwriting. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (agrees to cooperate with interest)▇▇▇▇▇ and any third party underwriter in connection with such underwriting, and both including, but not LEGAL02/45709332v2 limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller. Seller shall be relieved of any further obligations under this Agreement; provided, however, each party agrees that it shall pay their respective all out-of-pocket costs and expenses as provided incurred by Buyer in connection with ▇▇▇▇▇’s activities pursuant to this AgreementSection 16.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. (A) Buyer shall have Borrower acknowledges that the rightLender, after at the Contract Date expense of the Borrower, has the right to perform and/or appoint a third party to perform, reasonable continuing due diligence reviews with respect to Borrower, any Subservicer, the Servicing Rights, and the other Collateral, for purposes of verifying compliance with the representations, warranties, and specifications made hereunder and under the other Facility Documents, or otherwise. The Borrower agrees that the Lender and its Authorized Representatives will be permitted during normal business hours upon advance prior written notice to Sellerexamine, to access the Premises to inspect, investigate make copies of, and conduct due diligence as to matters make extracts of, any and all documents, records, agreements, instruments or information relating to the PremisesCollateral or ▇▇▇▇▇▇ ▇▇▇, including but not limited to Freddie Mac, HUD or ▇▇▇▇▇▇ ▇▇▇ in the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study possession of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from Borrower or any Subservicer; provided, however, the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer foregoing shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply with respect to any information that (i) the Borrower or any Subservicer is public knowledge on required by ▇▇▇▇▇▇ ▇▇▇, Freddie Mac, HUD, ▇▇▇▇▇▇ ▇▇▇, any Governmental Authority or a Requirement of Law to keep confidential. Notwithstanding anything to the date hereof; (ii) is in Buyer’s possession on contrary herein, the date hereof; (iii) becomes public after Borrower shall reimburse the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against Lender for any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, reasonable and documented out-of-pocket costs and expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver any reasonable costs and expenses of subrogation; agreeing any Valuation Agent) incurred by the Lender and its respective designees and appointees in connection with the ongoing due diligence and auditing activities with respect to give Seller sixty Borrower’s origination and servicing business. The Borrower further agrees that the Lender and its Authorized Representatives will be permitted during normal business hours upon three (603) daysBusiness Days’ prior written notice upon policy cancellation at a mutually desirable time or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy at any time during the continuance of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expensean Event of Default, to enter examine, copy and make extracts from the Servicing Records, any and all documents, records, agreements, instruments or cause information relating to the Pledged Servicing Rights and related Loans in the possession of, or under the control of, Borrower or any Subservicer, or Borrower’s or any Subservicer’s books and records (provided the foregoing shall not apply with respect to any information that the Borrower or any Subservicer is required by ▇▇▇▇▇▇ ▇▇▇, Freddie Mac, HUD, ▇▇▇▇▇▇ ▇▇▇, any other Governmental Authority or a Requirement of Law to keep confidential), to inspect any of its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reportsProperties, and to discuss its business and affairs with its officers, all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such terminationreasonably requested by ▇▇▇▇▇▇. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇▇ Money will be returned agrees to cooperate with ▇▇▇▇▇▇ and any third party due diligence agent or underwriter in connection with any such due diligence performed hereunder, including, but not limited to, providing ▇▇▇▇▇▇ and any third party diligence agent or underwriter with access to any and all documents, records, agreements, instruments or information relating to the Pledged Servicing Rights, any Subservicer and related Loans in the possession of, or under the control of, Borrower (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer foregoing shall not be entitled apply with respect to any environmental indemnification regardless information that the Borrower or any Subservicer is required by ▇▇▇▇▇▇ ▇▇▇, Freddie Mac, HUD, ▇▇▇▇▇▇ ▇▇▇, any other Governmental Authority or a Requirement of whether the investigation, study, test or report identified or failed Law to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentkeep confidential).
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Loan and Security Agreement (Mr. Cooper Group Inc.)
Due Diligence. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans, Seller, Guarantor and each Servicer, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Purchased Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, to review the servicing of the Purchased Mortgage Loans, or otherwise, and Seller agrees that (Aa) Buyer shall have the right, after the Contract Date and upon advance reasonable prior notice to Seller, unless an Event of Default shall have occurred and be continuing, in which case no notice is required, Buyer or its Authorized Representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans (the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence PeriodDocuments”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it possession or any under the control of its consultants Seller and/or the Custodian, or contractors visit the Premises(b) upon request, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period create and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory deliver to Buyer or Sellerwithin three (3) Business Days of such request, or an unacceptable environmental concern is revealed, or Buyer is unable electronic copy via email to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s M▇▇▇▇▇▇▇ Money will be returned (with interest).▇▇▇▇▇▇▇@▇▇▇.▇▇▇, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and both Buyer and the Purchased Mortgage Loans. Seller shall be relieved of any further obligations under this Agreement; provided, however, each also provide to Buyer all loan level due diligence conducted by a third-party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment Purchased Mortgage Loans. Such due diligence may be provided to Buyer after the purchase price as Mortgage Loan is subject to a result thereofTransaction. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyerwill periodically review Seller’s consultant, with Seller having the right to utilize the report as loan level due diligence process and findings and may request additional loan level due diligence be conducted if Seller had commissioned the site assessment.
(I) The provisions of this Section, deemed necessary in its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.reasonable
Appears in 1 contract
Sources: Master Repurchase Agreement and Securities Contract (Radian Group Inc)
Due Diligence. (A) Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, Seller and Servicer, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Mortgage Loans and such other information regarding such Persons or the Purchased Assets that Buyer may request and Seller, Servicer or such other Person shall have in their possession or control, for purposes of verifying compliance with the rightrepresentations, after the Contract Date warranties and specifications made hereunder, or otherwise, and Seller agrees that (a) upon advance reasonable prior notice to Seller, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer within [***] of such request, an electronic copy via email to [***], in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files and the Mortgage Loans. Notwithstanding the foregoing, subject to review and approval of the Third Party Reviewer procedures, Buyer shall be entitled to rely upon a due diligence review prepared by a Third Party Reviewer with respect to Mortgage Loans that are Non-Agency Loans so long as to matters relating (x) Buyer receives such due diligence review directly from such Third Party Reviewer and (y) such due diligence review was conducted within [***] of the related Purchase Date, or such other time period as agreed between the Buyer and the Seller. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Assets from Seller and enter into additional Transactions with respect to the PremisesMortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, including but not limited warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties with respect to the environmental conditions, zoning, governmental approvals, road access, property taxes, Mortgage Loans and any other conditions that otherwise regenerating the information used to originate such Mortgage Loan. Buyer deems necessary; provided that Buyer delivers may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost Third Party Reviewer and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, but not limited to, providing Buyer and consultants, any of the due diligence materials Third Party Reviewer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Mortgage Loans in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever Seller. Seller further agrees that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises shall pay all outofpocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 19; provided that such costs and expenses are in connection with such activities that are incremental to the due diligence investigation review of the Premises. Buyer further agrees that before it or any of its consultants visit Mortgage Loans performed by Seller and described in the Premises for related due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants materials delivered by Seller to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars Buyer ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. upon which Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicablemay rely). Buyer further agrees may, based on such due diligence, require to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consentchange contractual terms and add protections it deems, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during absolute discretion, necessary to protect its rights in the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agenciesMortgage Loans.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Finance of America Companies Inc.)
Due Diligence. (Aa) Buyer shall have until June 16, 2010 (the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement within which to conduct such due diligence activities, inspections, and studies of Seller per section 2A the Purchased Assets as it deems necessary or appropriate, and examine and investigate to its full satisfaction all facts, circumstances, and matters relating to the Purchased Assets that Buyer deems necessary or appropriate for purposes of consummating this agreementtransaction (collectively, “Buyer’s Due Diligence”).
(Bb) Buyer, at Buyer’s sole cost and expense, shall retain such professional consultants as Buyer agrees that they will keep confidential may deem appropriate to assist Buyer in Buyer’s Due Diligence. Seller, at no cost to itself but without charge to Buyer, shall execute and not disclose deliver such authorizations and consents as reasonably may be necessary to Buyer’s conduct of Buyer’s Due Diligence.
(c) During the Due Diligence Period, Seller shall make available to Buyer and its agents and representatives, or provide Buyer and its representatives with, copies of any third party except its attorneysand all documents such as records, lendersleases, agreements, permits and consultantslicenses, any of the due diligence materials and any additional studies (e.g., environmental, and/or other studiesarchaeological, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical dataappraisal, survey, and/or drawing generated during etc.), contracts and tenant leases and licenses, real property tax records, legal settlement documents, and title-related documents, that relate to the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement Purchased Assets and are in Seller’s possession or in the event the transaction contemplated by the parties fails to closecontrol or which are readily available.
(Cd) The confidentiality obligation herein does not apply to any information that On or before 5:00 p.m. (iHawaii Standard Time) is public knowledge on the date hereof; (ii) is last day of the Due Diligence Period, Buyer shall advise Seller, in Buyer’s possession on writing, if Buyer intends to proceed with the date hereof; (iii) becomes public after transaction or advise Seller if Buyer intends not to proceed with the date hereof other than due disclosure by Buyer or its attorneystransaction, lenderssubject to the Financing Contingency, or consultants; (iv) is obtained by advise Seller, in writing, if Buyer from an independent third party who Buyer reasonably believes after due inquiry is free intends not to deliver such material free of any confidentiality obligation; or (v) is proceed with the subject of any court order or other legally-mandated disclosuretransaction.
(De) Buyer assumes the sole risk of all of Buyer’s costs and expenses of Buyer’s Due Diligence, and Seller shall have no liability for any such costs and expenses.
(f) Buyer shall indemnify, defend, indemnify and hold Seller harmless Seller from and against any and all property loss, cost, injury and damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney reasonable attorney’s fees, consultant fees and other legal costs)arising out of, of whatever kind resulting from, or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection connected with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of SellerDue Diligence.
(Eg) Seller Termination of this Agreement shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement not relieve any party of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress liability for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time a breach of any termination provision of this Agreement, are to be delivered to Seller within twenty-one (21) days after Agreement before such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ml Macadamia Orchards L P)
Due Diligence. (A) Buyer shall will have until the right, expiration of the 30th day after the Contract Effective Date of this Agreement (the "Inspection and upon advance notice to SellerFeasibility Study Period"), to access the Premises to inspect, investigate conduct all of its inspections and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and satisfy itself regarding title to the name of any consultantProperty, agent, contractor or other who and to inspect the Property at Buyer's sole expense. Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts indemnify and hold Seller harmless for any loss or damage to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, Property or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure persons caused by Buyer or its attorneysagents arising out of such physical inspections of the Property. Buyer expressly acknowledges that the sale of the Property as provided for herein is made on an "AS IS" basis, lendersand such provision shall survive closing. Buyer may cancel this Agreement for any reason at its sole discretion by delivering a cancellation notice by certified mail, return receipt requested, or consultants; by personal delivery to Seller and escrow holder before the expiration of the Inspection and Feasibility Study Period. The First Payment shall be non- refundable unless Seller shall default hereunder or if Seller is unwilling or unable to cure any title, survey or environmental defects. If Buyer cancels this Agreement as permitted under this Section or Sections 16 or 17, except for any liabilities under sections 15(a)(iii) and 16(b) of this Agreement (iv) is obtained which will survive), (after execution of such documents reasonably requested by Seller to evidence the termination hereof), Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free will have absolutely no rights, claims or interest of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises type in connection with Buyer’s due diligence investigation the Property or this transaction, regardless of the Premisesany alleged conduct by Seller or anyone else. Buyer further agrees that before it or Unless Seller shall be in default of any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effectobligation hereunder, or will cause its consultants this Agreement is canceled by Buyer pursuant to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated hereinhereof, including without limitationif Buyer fails to make the Second Payment, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with be entitled to retain the First Payment and Buyer irrevocably will be deemed to have canceled this Agreement and relinquished all rights in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property. If this Agreement is not canceled and the Second Payment is made when required, which items, to the extent not already provided to Seller at the time all of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by Buyer's conditions and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money contingencies will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreementdeemed satisfied.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Purchase Agreement (Aei Net Lease Income & Growth Fund Xx Limited Partnership)
Due Diligence. (A) Buyer 6.1 The Parties shall have be allowed up to and including the rightClosing Date, after which shall be referred to as the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of , to satisfy themselves that:
1. the title to the City Property and the ROW Property are good and free from restrictions, mortgages, charges, liens and encumbrances except as otherwise specifically provided in this agreement.Agreement and save and except for:
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on any registered restrictions or covenants that run with the date hereof; City Property, provided that such have been complied with, (ii) is in Buyer’s possession on the date hereof; any registered municipal agreements and agreements with publicly regulated utilities, provided that such have been complied with, (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneysany easements and rights-of-way, lendersprovided that such have been complied with, or consultants; (iv) is obtained any qualifications, reservations, provisos and limitations contained in or imposed by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver any applicable statute and/or any authority having jurisdiction over the City Property provided that such material free of any confidentiality obligation; or have been complied with, (v) is any discrepancies in title or possession which would be disclosed by an up-to-date survey; and
2. there are no outstanding orders, deficiency notices or directives issued by any federal, provincial or municipal authority affecting the subject City Property and ROW Property.
6.2 If, within the Due Diligence Period, the Parties notify each other or their Solicitors of any court order valid objection to title or to any outstanding order, deficiency notice or directive or to the fact that the present use of the City Property and ROW Property may not be lawfully continued and which the Parties are unable or, in their discretion, determine not to remove, remedy or satisfy and which the Parties will not waive, this Agreement shall, notwithstanding any intermediate acts or negotiations in respect of any such matter, be at an end. Save as to any valid objection so made within the Due Diligence Period, and except for any objection going to the root of the title, the Parties shall be conclusively deemed to have accepted the Parties’ title to the City Property and ROW Property.
6.3 Subject to Sections 6.1 and 6.2, the Parties covenant and agree to discharge any registered liens, mortgages or charges affecting the City Property or the ROW Property at their own expense on or before the Closing Date.
6.4 The Parties shall not call for the production of any title deed, abstract, survey or other legally-mandated disclosureevidence of title to the City Property or ROW Property except as are in the control or possession of the Parties. The Parties agree that the Parties will deliver any sketch or survey of the City Property or ROW Property in the Parties’ control or possession to the Parties as soon as practicable and prior to the last day allowed for examining title to the City Property or ROW Property.
(D) Buyer shall indemnify6.5 The Parties shall, defendupon request, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which forthwith deliver letters in a form satisfactory to the Parties addressed to such governmental authorities as may be brought against Seller relating in any way associated with reasonably requested by the conducting Parties or their solicitors authorizing the release of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants information as to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall compliance matters which such governmental authorities may have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the City Property or the ROW Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party that nothing herein contained shall pay their respective costs be deemed to authorize or permit the Parties to request any governmental or municipal inspections of the City Property or ROW Property. If this Agreement is not completed the Parties shall keep any such information strictly confidential and expenses as provided in this Agreementshall not use it for any purpose whatsoever.
(H) In 6.6 There is no condition, representation or warranty of any kind, express or implied, that the event Buyer elects to proceed with the purchase condition of the Premises with such environmental concern “AS ISCity Property or ROW Property shall be appropriate for any particular use, WHERE ISunless expressly set out herein, WITH ALL FAULTS”or that the present use by the Parties or the future intended use by the Parties is or will be lawful or permitted, Buyer or that any sketch or survey delivered by the Parties is complete or accurate. Without limiting the generality of the foregoing, this Agreement shall not be entitled to affected by any environmental indemnification regardless of whether change in the investigation, study, test zoning or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership use of the final report by Buyer’s consultant, with Seller having the right Exchange Properties prior to utilize the report as if Seller had commissioned the site assessmentcompletion.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Due Diligence. (i) Within five (5) days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller's possession or reasonably obtainable by Seller or Seller's counsel: (A) Buyer shall a complete copy of all leases affecting the Property (unless the same have previously been provided to Buyer) and all amendments thereto; (B) a copy of the right, after most recent survey and site plan of the Contract Date Property; (C) a copy of the most recent enviromnental reports for the Property (D) a copy of all architectural plans and upon advance notice specifications and construction drawings and contracts for improvements to be located on the Property; (E) a copy of Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters 's most recent title insurance policies relating to the PremisesProperty; (F) all Seller contracts which currently affect the Property.
(ii) Within five (5) days following the commencement of the Second Due Diligence Period, Seller shall provide to Buyer copies of the following documents and materials pertaining to the Property to the extent within Seller's possession or reasonably obtainable by Seller or Seller's counsel: (A) a copy of the certificate of occupancy and zoning reports for the Property; (B) a copy of all governmental permits/approvals; (C) a copy of all engineering and physical condition reports for the Property prepared within the last five years; (D) copies (or other reasonably acceptable evidence) of the Property's real estate tax bills for the current tax year; (E) all service contracts and insurance policies which affect the Property; (F) a copy of all warranties relating to the improvements constructed on the Property, including but not limited without limitation any roof warranties; and (G) a written inventory of all items of personal property to be conveyed to Buyer, if any (the "Due Diligence Materials"). Seller shall deliver any other documents relating to the environmental conditionsProperty reasonably requested by Buyer, zoningto the extent within Seller's possession or reasonably obtainable by Seller or Seller's counsel, governmental approvalswithin three (3) business days following such request. Additionally, road accessduring the term of this Agreement, property taxesBuyer, its agents and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entrydesignees, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the PremisesProperty, upon advance notice subject to Sellerthe rights of the Tenant and compliance with the Lease requirements for such entry (including those in Lease Section 39), for the purpose purposes of inspecting the Property, conducting soil tests, and making surveys, testsmechanical and structural engineering studies, boringsinspecting construction, inspections, investigations, or and conducting any architectural, engineering, structural, economic, environmental, mechanical other investigations and any other study inspections as Buyer may reasonably require to assess the condition and suitability of the Premises as Property; provided, however, that such activities by or on behalf of Buyer deems necessary. Seller will provide access to available on the Property shall not damage the Property nor interfere with construction on the Property or the conduct of business by Tenant under the Lease; and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees provided further, however, that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, indemnify and hold Seller harmless Seller from and against any and all property damageclaims or damages to the extent resulting from the activities of Buyer or its employees, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants agents or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to on the Property, and Buyer shall repair any and all damage caused, in whole or in part, by Buyer or its employees, agents or contractors, and return the Property to its condition prior to such damage, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after obligation shall survive Closing or any termination of this Agreement. Seller shall reasonably cooperate with the efforts of Buyer and the Buyer's representatives to inspect the Property. During the Second Due Diligence Period, as Buyer shall be permitted to speak and meet with Tenant in connection with Buyer's due diligence. Prior to the case may beSecond Due Diligence Period, Seller shall provide Buyer with the name of a contact person(s) for the purpose of arranging site visits. Buyer shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the Property and comply with all Lease requirements related to such entry, and Seller may have a representative present during any and all examinations, inspections and/or studies on the Property. Buyer shall provide such consents have the unconditional right, for any reason or other documentation as no reason, to terminate this Agreement by giving written notice thereof to Seller shall request so that Seller may do so.
(G) If and the results Escrow Agent prior to the expiration of the Buyer’s investigationSecond Due Diligence Period, studyin which event this Agreement shall become null and void, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s shall receive a refund of the ▇▇▇▇▇▇▇ Money will be returned (with interest)Money, and both Buyer all rights, liabilities and Seller shall be relieved obligations of any further obligations the parties under this Agreement; providedAgreement shall expire, however, each party shall pay their respective costs and expenses except as provided in this Agreement.
(H) otherwise expressly set forth herein. In the event Buyer elects to proceed with that the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”Due Diligence materials enumerated in Section 6(b)(ii) above disclose any matters which need completion or correction, Buyer shall give Seller written notice of such matters which shall then be completed or corrected by Seller provided Seller need not be entitled expend more than Twenty Five Thousand Dollars ($25,000.00) to do so. Buyer's rights and Seller's obligations with respect to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment matters arising subsequent to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer First Due Diligence Period shall grant Seller ownership of the final report by Buyer’s consultant, be in accordance with Seller having the right to utilize the report as if Seller had commissioned the site assessmentSections 9(b).
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital Global Trust, Inc.)
Due Diligence. Buyer's obligation to purchase the Assets and Seller's obligation to sell the Assets are each conditioned upon the satisfaction or express written waiver of the conditions precedent set forth below:
(A1) Attached hereto as Exhibit A-3 is a list of items that ▇▇▇▇▇▇ agrees to provide to Buyer as part of Buyer's due diligence and investigation of the Assets, which Seller agrees to provide as soon as practicable (the "Due Diligence Items"). The Due Diligence Items shall be provided to the extent that such items are in writing or human readable electronic format and to the extent that such items do not need to be created by Seller for the sole purpose of satisfying Buyer's due diligence. The provision of all such items in Seller's possession shall constitute full satisfaction of Seller's obligation hereunder, even if such items constitute only a portion of the items otherwise requested by Buyer. Buyer shall have until 5:00 p.m. on Saturday, January 23, 1999 (the right, after the Contract Date and upon advance notice to Seller"Approval Deadline"), to access approve or disapprove, at its sole discretion the Premises following matters pertaining to inspect, investigate the Assets: (a) the physical and conduct due diligence as to matters relating to environmental condition of the Equipment and the Premises, including but not limited including, without limitation, the presence or absence of any Hazardous Materials at or beneath the Premises; (b) the financial condition of the Assets including, without limitation, the feasibility, convertability, desirability and suitability of the Assets for Buyer's intended use and purposes; (c) the legal condition of the Assets including, without limitation, the Assets' compliance or non-compliance with any applicable federal, state or local statutes, ordinances, codes, regulations, decrees, orders, laws or other governmental requirements (collectively, "Applicable Laws"); (d) the Documents (hereinbelow defined) and all other Seller Materials (hereinbelow defined), if any; (e) the existence or non-existence, and availability or nonavailability, of any governmental, quasi-governmental or private approvals, permits, licenses, or other entitlements, if any, affecting the Assets or their use or occupancy; (f) the dimensions and specifications of the Premises; (g) the zoning, building, and land use restrictions affecting the Premises; and (h) the condition of title to the environmental conditionsAssets The matters described in clauses (a) through (h), zoningabove, governmental approvals, road access, property taxes, and any other conditions that are collectively referred to herein as the "Condition of the Assets". Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereaftermay, at its own risk, sole cost and expense, retain a qualified licensed contractor to enterperform a Phase I and a Phase II environmental assessment of the Premises.
(2) Buyer acknowledges that the period of time from the execution of this Agreement until the Approval Deadline affords Buyer sufficient time to make all inspections, tests, analyses, evaluations and reviews Buyer deems necessary and prudent to fully evaluate the Condition of the Assets. Buyer shall approve or cause its approved agents and representatives disapprove the Condition of the Assets by delivering written notice thereof to Seller on or before the Approval Deadline. If Buyer disapproves the condition of the Assets in the manner provided in this Section 2.3, then this Agreement shall terminate without further action by the parties as provided in Section 15.3, below.
(3) Seller hereby grants Buyer the right to enter upon the Premises, upon advance notice Premises from the date of execution of this Agreement through and until the Approval Deadline between the hours of 8:00 a.m. and 5:00 p.m. to Seller, for the purpose of making surveysconduct such inspections, tests, boringsinvestigations, analyses and evaluations as Buyer deems necessary or prudent to evaluate the Condition of the Assets, provided that such activity does not interfere with Seller's business or the operation of the Wafer Fabrication Facility and that Buyer shall give Seller oral or written notice at least one (1) business day before the entry of any person possessing mechanic's or materialmen's or other lien rights so as to allow Seller to post the appropriate notices of non-responsibility. Any such requirement shall not delay Buyer's scheduled inspections, investigationstests, or conducting any architecturalinterviews, engineeringprovided ▇▇▇▇▇ has provided Seller with at least three (3) business days prior written notice of the date, structural, economic, environmental, mechanical time and any other study location of the scheduled inspections of the Premises as or the Assets. All tests, inspections and examinations of the Assets shall be done at Buyer's sole expense in a workmanlike manner in accordance with Applicable Laws. Notwithstanding anything to the contrary herein, Buyer deems necessarymay not perform any test or inspection or carry out any activity at the Premises that damages the Premises or Assets or which is physically intrusive into the ground or any improvements on the Premises, without the prior written consent of Seller, which Seller may withhold in its sole and absolute discretion. If Seller will provide access does not consent to available any such test, inspection or activity, then Buyer may give written notice to Seller of its disapproval of the Condition of the Assets and relevant documents and recordsthereby terminate this Agreement in the manner provided above. Buyer has ninety shall, at its sole expense, immediately repair any damage to the Premises or the Assets caused by any entry by Buyer or any of Buyer's agents, servants, nominees, contractors, consultants, engineers, subcontractors, employees or other persons acting for or on behalf of Buyer (90collectively, "Buyer's Representatives") days from upon the Contract Date Premises, and Buyer shall, at its sole expense, after each entry by Buyer or any of Buyer's Representatives upon the Premises, restore the Property to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement the same condition it was in as of Seller per section 2A of the date this agreementAgreement was executed.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D4) Buyer shall indemnify, defendprotect, defend and hold Seller, its employees, agents, successors, and hold assigns, and the Assets free and harmless Seller from and against any and all property damageclaims, personal injuryactions, and/or death claimscauses of action, suits, demandsproceedings, costs, expenses (including, without limitation, attorneys' fees and costs), liabilities, damages, expenses damages and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting liens of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it type or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars kind ($2,000,000.00"Costs") per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing resulting from property damage or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined personal injury caused by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest's exercise of its inspection rights under paragraph 2.3(b)(3), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party that the foregoing indemnity shall pay their respective costs and expenses as provided in this Agreementnot apply to any Costs resulting from (i) the acts, omissions of Seller or any agent, contractor or representative of Seller, or (ii) Buyer's discovery of any information potentially having a negative impact on the Assets, the Premises or the Wafer Fabrication Facility, including, without limitation, any Costs arising from or relating to the discovery of any Hazardous Materials on or about the Premises.
(H5) In the event Buyer elects to proceed with the purchase Within two (2) days of the Premises execution of the Agreement, Seller will provide or will make available to Buyer for review and photocopying (at Buyer's sole expense), at the office of Seller, during Seller's normal business hours, any other additional documents related to the Assets that are in Seller's possession, including, but not limited to, building and improvement plans, maintenance and inspection reports, construction records, environmental reports, assessments, permits, audits, and agency correspondence (including any Phase I or Phase II or other environmental reports or information previously created or in progress), or statements of any information with such environmental concern “AS ISrespect to possible or pending actions regarding the Assets by any Federal, WHERE IS, WITH ALL FAULTS”State or other government agency. Such documents are collectively referred to herein as the "Documents". Buyer hereby agrees that it shall not remove any original Documents from Seller's offices. On the termination of this Agreement for any reason whatsoever, Buyer shall not be entitled immediately return all photocopies of any Documents to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentSeller.
(I6) The provisions conditions precedent set forth above shall fail or shall be satisfied in accordance with their respective terms. No waiver of this Section, its subparts, and Exhibit “I” any such conditions precedent shall survive delivery be effective unless expressly set forth in writing by the party or parties receiving the benefit of the deed and termination of this Agreement, if anycondition.
Appears in 1 contract
Sources: Not Specified (Supertex Inc)
Due Diligence. Each Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, Seller Parties and other parties which may be involved in or related to Transactions (Acollectively, “Third Party Transaction Parties”), as deemed appropriate by Buyer in its good faith discretion, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, and Seller Parties agree that upon reasonable prior notice to Seller Parties unless an Event of Default shall have occurred and be continuing, in which case no notice is required, Buyer or its authorized representatives will be permitted at reasonable times to examine, inspect, and make copies and extracts of, the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of any Seller Party; provided however, that unless (a) an Event of Default has occurred and is continuing or (b) a Credit Event (and in such case solely with respect to the Purchased Asset related to such Credit Event) has occurred and is continuing, Buyer shall have not conduct more than one (1) such review during any one (1) year period. Seller Parties will use best efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Seller Parties shall also make available to Buyer a knowledgeable financial or accounting officer for the rightpurpose of answering questions respecting the Asset Files and the Purchased Assets. Without limiting the generality of the foregoing, after Seller acknowledges that Buyer may purchase Purchased Assets from Seller based solely upon the Contract information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to cause Servicer or its agent to conduct a partial or complete due diligence review on some or all of the Purchased Assets purchased in a Transaction, including, without limitation, ordering new Qualified Appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Purchased Asset and reviewing intercreditor agreements, property management agreements, formation documents of the property owners and their direct and indirect owners, financial statements, environmental and engineering reports, underlying title policies including owner’s and UCC-9 title insurance policies, legal opinions and other documents as may be mutually agreed among Seller and Buyer. For the avoidance of doubt, Servicer’s obligation to provide such due diligence to Buyer shall not preclude Buyer’s right to perform due diligence on the Purchased Assets prior to the Purchase Date and upon advance notice to Selleras necessary during the term of the Agreement, to access the Premises to inspectas determined by Buyer in its sole discretion, investigate and conduct due diligence as to matters relating subject to the Premises, including but not limited terms of the Commercial Mortgage Loan Documents. Buyer may underwrite such Purchased Assets itself or engage a mutually agreed upon third party underwriter to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as third-party underwriter in connection with such underwriting, including, but not limited to, providing Buyer deems necessary. Seller will provide and any third-party underwriter with access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Purchased Assets in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind Seller Parties or nature whatsoever Servicer. Seller further agrees that may arise out of or result from any claimit shall pay, suitto the extent Seller has received an invoice therefor, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises all out-of-pocket costs and expenses actually incurred by Buyer in connection with Buyer’s activities pursuant to this Section 17 for one (1) review during any one (1) year period commencing after the first anniversary of the date hereof (and all other reviews during such one (1) year period shall be at the sole cost and expense of Buyer); provided that such limitation shall not apply (i) in connection with the pre-purchase due diligence investigation of on an Eligible Asset that is to be purchased by Buyer; or (ii) upon the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars continuance of an Event of Default or the occurrence and continuance of a Credit Event ($4,000,000.00) and in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance such cases solely with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining respect to the Property, which items, Purchased Asset related to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do soCredit Event).
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, the Seller Party, Settlement Agents, Approved Investors and other parties which may be involved in or related to Transactions (Acollectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Seller Party agrees that upon reasonable (but not less than three (3) Buyer Business Days) prior notice to the Seller Party, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the rightMortgage Files and any and all documents, after records, agreements, instruments or information relating to such Mortgage Loans in the Contract Date possession or under the control of Seller Party. The Seller Party will use commercially reasonable efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Provided that no Event of Default has occurred and upon advance notice is continuing, Buyer agrees that it shall exercise best efforts, in the conduct of any such due diligence, to minimize any disruption to Seller’s normal course of business. The Seller Party shall also make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans and, to access once Seller Party and Buyer establish mutually agreeable procedures for the Premises to inspecthandling and use by Buyer of Seller’s confidential beneficial ownership information, investigate and conduct due diligence as to matters Seller Party shall ensure that Buyer has sufficient information relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice Seller’s beneficial ownership for purposes of Buyer’s intent compliance with 31 C.F.R. § 1010.230. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the name of any consultant, agent, contractor related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or other who Buyer desires engage a mutually agreed upon third party underwriter to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with reasonable access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Mortgage Loans in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against the Seller. Seller relating in any way associated with the conducting of any activity upon the Premises Party further agrees to pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation activities pursuant to this Section 17 (the “Due Diligence Costs”); provided that Seller shall not be responsible for Due Diligence Costs in excess of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this AgreementDue Diligence Cap; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In that the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer Due Diligence Cap shall not be entitled to any environmental indemnification regardless apply upon the occurrence of whether the investigation, study, test a Default or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership Event of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentDefault.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
Due Diligence. The Company will make available to each Selling Holder (Aand their counsel) Buyer and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel or auditors and will also make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "INSPECTORS"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "RECORDS") as shall have be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the rightCompany's officers and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; PROVIDED, that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, PROVIDED FURTHER, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Contract Date Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its affiliates (as defined in Rule 405 promulgated under the Securities Act) unless and until such information is made generally available to the public. Each Selling Holder further agrees that it will, upon advance learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to Seller, to access the Premises to inspect, investigate Company and conduct due diligence as to matters relating to allow the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafterCompany, at its own risk, cost and expense, to enter, or cause its approved agents and representatives undertake appropriate action to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study prevent disclosure of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementRecords deemed confidential.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. Brookfield Land and its employees, contractors, agents, representatives, architects, engineers and consultants (A) Buyer shall have collectively, the right“Brookfield Land Entities”), after as a component of the Contract Date and upon advance notice to SellerBrookfield Land Expenses (defined below), to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafterduring the Negotiation Period to inspect the Property, at its own risk, cost make surveys and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architecturalconduct such soils, engineering, structuralhazardous or toxic material, economicpollution, environmentalseismic or other tests, mechanical studies and investigation as Brookfield Land may require (collectively, the “Inspections”) Brookfield Land is prohibited from performing any other study invasive testing or boring on the Property without the prior written consent of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementCity Manager.
(Ba) Buyer agrees that they will keep confidential and Brookfield Land shall cause the Inspections to be conducted at times reasonably acceptable to City, upon not disclose less than seventy-two (72) hours prior written notice to any third party except its attorneys, lendersCity in each instance, and consultants, in a manner that does not materially adversely affect the Property. City may have a representative present at any Inspections of the due diligence materials Property. In conducting its Inspections at the Property, Brookfield Land and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that Brookfield Land Entities shall: (i) is public knowledge on not damage any part of the date hereofProperty or any personal property owned or held by any third party; (ii) is in Buyer’s possession on promptly repair any damage to the date hereofProperty resulting directly or indirectly from the entry by Brookfield Land or the Brookfield Land Entities or from any such Inspections; (iii) becomes public after the date hereof other than due disclosure by Buyer not injure or otherwise cause bodily harm to City, or its attorneystenants, lendersagents, or consultantsguests, invitees, contractors and employees; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligationcomply with all applicable laws; or (v) is promptly pay when due the subject costs of all Inspections; and (vi) not permit any court order or other legally-mandated disclosureliens to attach to the Property by reason of the exercise of Brookfield Land’s rights hereunder.
(Db) Buyer Promptly upon completion of each Inspection, Brookfield Land shall cause the portion of the Property subject to such Inspection to be restored to substantially the condition existing immediately prior to such Inspection. Brookfield Land shall provide City, as a component of the Brookfield Land Expenses, with copies of the final results of each Inspection made by or for Brookfield Land concurrently with Brookfield Land’s receipt of such final results.
(c) Brookfield Land hereby agrees to indemnify, defend, and hold harmless Seller the City and its respective officers, officials, members, employees, directors, agents, representatives, contractors, and volunteers (collectively, the “City and City Personnel”), and the Property, free and harmless from and against any and all property damage, personal injury, and/or death claims, suitsdamages, liabilities, demands, liabilitiesactions, damagesliens, stop notices, losses, costs and expenses and costs, (including attorney fees, consultant without limitation reasonable attorneys’ fees and other legal court costs), ) arising from or as a result of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon Inspections, except to the Premises in connection with Buyerextent caused by an indemnified party’s due diligence investigation of the Premises. Buyer further agrees that before it negligence, recklessness or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Sellerintentional misconduct.
(Ed) Seller Brookfield Land’s obligations under this Section shall cooperate with survive the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to expiration or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Exclusive Negotiating Agreement
Due Diligence. (A) Buyer 6.1 At any time prior to the end of the Due Diligence Period, during normal business hours and after reasonable notice to Seller or its designated agents, Purchaser, or its engineers, architects, building consultants, environmental investigators, or other representatives, at Purchaser's sole cost and expense, may inspect and test the Premises and Seller shall reasonably cooperate by allowing Purchaser's representatives reasonable access thereto. Purchaser's right of inspection shall include entry upon the Premises with its agents and their equipment for the purpose of making such environmental tests as Purchaser deems appropriate, including without limitation soil borings, provided that Purchaser shall be responsible for the prompt restoration of the Premises to its condition prior to making such tests, which obligation shall survive the termination of this Agreement. Purchaser shall comply with all laws, rules and regulations of any governmental authority and obtain all licenses and permits required in connection with such activities. Purchaser agrees to indemnify and hold Seller harmless from and against any property damage or personal injury or claim or lien against the Premises resulting from any such access or inspection by Purchaser or its representatives. Such indemnification shall survive the Closing or earlier termination of this Agreement. Purchaser shall also have the right during such Due Diligence Period to examine and review environmental conditions of the Premises, zoning, governmental entitlements, governmental approvals and any restrictions, agreements, obligations and liabilities affecting the Premises.
6.2 At any time during the Due Diligence Period, Purchaser shall have the rightright to terminate this Agreement if Purchaser determines for any reason, after the Contract Date and upon advance in Purchaser's sole discretion, that it is not satisfied with respect to any matter for which it conducts its due diligence, by giving written notice to Seller on or before the end of such Due Diligence Period. If Purchaser terminates this Agreement pursuant to this Section 6.2, it shall provide Seller with copies of the written results of all such inspections, if any. If Purchaser timely gives notice of termination under this Section, all obligations of the parties hereunder shall cease and neither party shall have any claim against the other by reason of this Agreement, except with respect to any provision hereof that expressly survives the termination of this Agreement. Upon restoration of the Premises as provided in Section 6.1, the Deposit shall be returned to Purchaser. If Purchaser fails to give such written notice of termination on or before the end of such Due Diligence Period, Purchaser shall be deemed to have waived its right to terminate this Agreement pursuant to this Section.
6.3 If Purchaser terminates this Agreement in accordance with Section 6.2 above, Purchaser shall return to Seller all documents provided to Purchaser from Seller, and any copies thereof made by Purchaser and shall provide Seller with copies of all reports, surveys, plans, studies and analysis prepared by or for Purchaser with respect to access the Premises to inspect, investigate Premises. Purchaser agrees that any and conduct due diligence as to matters relating all information obtained by it or its agents and representatives with respect to the Premises, including but not limited without limitation all reports, surveys, plans, studies and analysis prepared by or for Purchaser with respect to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to shall be held by Purchaser in confidence and not released or shared with anyone other than Seller, except for the purpose of making surveyssuch employees, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical lenders and any other study of the Premises professional advisors as Buyer deems necessary. Seller will provide access reasonably necessary to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date allow Purchaser to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of evaluate the Premises. Buyer further agrees that before it or any The provisions of its consultants visit this Section 6.3 shall survive the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement. If Purchaser waives its right to terminate as provided above, are Purchaser shall be deemed to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing have accepted the Premises in an "as is" condition, without any representations or any termination of this Agreementwarranties, except as the case may bespecifically provided herein, and Buyer shall provide such consents without abatement or other documentation as Seller shall request so that Seller may do so.
(G) If the results reduction of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this AgreementPurchase Price.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. (A) Buyer shall have has paid Seller the rightsum of $25.00, after the Contract Date and upon advance notice to receipt of which is hereby acknowledged by Seller, as option money for Buyer having the right to access terminate this Agreement during the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller Due Diligence Period. Within ten (10) days after the Effective Date, Seller shall deliver to Buyer the Due Diligence Materials to the extent within Seller’s possession. Upon the completion of Seller’s delivery to Buyer of all such Due Diligence Materials, Buyer and Seller shall agree in advance writing (which may be via e-mail) as to such date of entrycompletion of delivery, written notice which shall be the date of commencement of the Due Diligence Period. Prior to Closing, Buyer and Buyer's representatives and agents shall have the right to enter upon Property at Buyer's expense, and at reasonable times, to inspect, survey, examine, and test the Property as Buyer may deem necessary as part of Buyer’s intent 's acquisition of the Property. Seller shall allow Buyer and its representatives and agents access to, or shall provide documents for review, whichever the case may be, with respect to conduct due diligence the Property at all reasonable times and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, shall cooperate with Buyer’s request that access be granted efforts to such person or personsconduct the inspections permitted herein. Seller agrees to use its best efforts cooperate in introducing Buyer to respond to such request from Buyer within ten (10) days of receiptvendors, staff and other parties who have experience with Sellerthe Property’s approval, ongoing operations. Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, indemnify and hold Seller harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses injuries and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise damages to persons and/or property arising out of or result resulting from the exercise of Buyer’s inspection rights; provided, however, Buyer’s indemnity obligations shall not extend to any claimclaims, suit, act, judgement, demand injuries or which damages resulting from or relating to (i) any action of Seller or its agents or representatives or (ii) any existing environmental contamination or other conditions with respect to the Property that may be brought against Seller relating in any way associated with discovered by Buyer as the conducting result of any activity upon its investigations. During the Premises in connection with Buyer’s due diligence investigation Due Diligence Period, Buyer may evaluate the Property, the feasibility of the Premises. Buyer further agrees that before it or any transaction, the availability and cost of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including deathfinancing, and property damage in a minimum amount any other matters of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregateconcern to Buyer. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This terminate this Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided delivering notice to Seller at or before 11:59 p.m. Eastern time on the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results last day of the Buyer’s investigationDue Diligence Period, studyif Buyer determines, test for any reason or report are no reason, that it is not satisfactory desirable to Buyer or Sellerproceed with the transaction. In such event, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇Holder shall promptly refund the Ea▇▇▇▇▇ Money will be returned (with interest)▇oney to Buyer, and both Buyer and Seller neither party shall be relieved of have any further obligations or liability under this Agreement; provided, however, each party shall pay their respective costs and expenses Agreement except as expressly provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Manufactured Housing Properties Inc.)
Due Diligence. (A) The Sellers acknowledge that Buyer shall have has the right, after which Buyer does not expect to (but may) exercise more frequently than quarterly, to perform continuing due diligence reviews with respect to the Contract Date Purchased Assets, the Sellers, the Servicers, the Guarantor and the Servicers or Subservicers, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Sellers agree that (a) upon reasonable prior notice to Sellers, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets (the “Due Diligence Documents”) in the possession or under the control of the Sellers and/or the Custodian, or (b) upon request, the Sellers shall create and deliver to Buyer within three (3) Business Days of such request, an electronic copy via email to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Upon reasonable advance notice from the Buyer, the Sellers also shall reasonably make available to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor a knowledgeable financial or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical answering questions respecting the Asset Files and any other study the Purchased Assets. Without limiting the generality of the Premises as foregoing, the Sellers acknowledge that Buyer deems necessary. Seller will provide access may purchase Purchased Assets from Sellers and enter into additional Transactions with respect to available the Purchased Assets based solely upon the information provided by the Sellers to the Buyer in the Asset Schedule and relevant documents the representations, warranties and recordscovenants contained herein, and that the Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties with respect to the Mortgage Loans and otherwise re-generating the information used to originate such Mortgage Loan. Buyer has ninety (90) days from engaged an Approved Diligence Provider to perform such underwriting. The Sellers agree to cooperate with the Contract Date Buyer and such Approved Diligence Provider in connection with such underwriting, including, but not limited to, providing Buyer and Approved Diligence Provider with access to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Mortgage Loans in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever the Sellers. The Sellers further agree that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises Sellers shall pay all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants activities pursuant to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Sellerthis Section 20.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Angel Oak Mortgage, Inc.)
Due Diligence. (Aa) Buyer shall have the rightSeller acknowledges that Purchaser, after the Contract Date at reasonable times and upon advance reasonable notice to Seller, Purchaser has the right to access the Premises to inspect, investigate and conduct perform continuing due diligence as to matters relating reviews with respect to the Premises, Purchased Assets (including but obtaining updated or new appraisals not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and any other conditions that Buyer deems necessaryis continuing); provided that Buyer delivers to that, unless an appraisal is requested by Seller, any such appraisal ordered by Purchaser while no Event of Default is continuing shall be at Purchaser’s expense, Seller ten (10) days in advance Parties and Servicer for purposes of entryverifying compliance with the representations, written notice of Buyer’s intent to conduct due diligence warranties and the name of any consultantspecifications made hereunder, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsotherwise. Seller agrees to use its best efforts to respond to such request from Buyer within ten that upon reasonable prior notice (10) days unless an Event of receiptDefault has occurred and is continuing, and with Seller’s approvalin which case no prior notice shall be required), Buyer Seller shall have the right thereafterprovide (or shall cause any other Seller Party or Servicer, at its own risk, cost and expenseas applicable, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide provide) reasonable access to available Purchaser and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit agents, representatives or permitted assigns to the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to offices of Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it such other Seller Party or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this AgreementServicer, as the case may be, during normal business hours and Buyer shall provide permit them to examine, inspect, and make copies and extracts of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such consents Purchased Assets in the possession or other documentation as Seller shall request so that Seller may do sounder the control of such party.
(Gb) If Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the results time of any inspection pursuant to Article 28(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required and there shall be no limitation on frequency), by phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about any of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Sellerforegoing Persons, or an unacceptable environmental concern is revealedany other matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the foregoing, or Buyer is unable Seller acknowledges that Purchaser may enter into Transactions with Seller based solely upon the information provided by Seller to secure acceptable financing solely as determined by BuyerPurchaser and the representations, either Buyer or Seller in their sole warranties and absolute discretion and/or judgment may terminate this Agreementcovenants contained herein, and Buyer’s that Purchaser, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Purchaser may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇▇▇▇ Money will be returned (and any third party underwriter in connection with interest)such underwriting, including, but not limited to, providing Purchaser and both Buyer any third party underwriter with access to any and Seller shall be relieved all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of any further obligations under this Agreement; provided, however, each party shall pay their respective Seller Party or any Affiliate thereof.
(e) Seller agrees to reimburse Purchaser on demand for any and all reasonable and documented out-of-pocket costs and expenses as provided (including, without limitation, the reasonable fees and expenses of outside counsel) incurred by Purchaser in connection with its due diligence activities pursuant to this AgreementArticle 28.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. Subject to Section 14(z) and the limitations contained in the Pricing Side Letter and the EPF Pricing Side Letter, (Ai) Buyer Purchasers, Agent, Verification Agent or any of their respective agents, representatives or permitted assigns shall have the right, after the Contract Date upon reasonable prior notice and upon advance notice to Sellerduring normal business hours, to access the Premises to inspect, investigate conduct inspection and conduct perform continuing due diligence as to matters relating to reviews of (x) Seller and its Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of its obligations under the PremisesProgram Documents, including and (y) the Servicing File and the Purchased Assets (including, but not limited to, any documentation related to Seller's FHA servicing practices) and (ii) Seller agrees promptly to provide Purchasers, Agent, Verification Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the environmental conditionsforegoing in computer data banks and computer software systems) relating to Seller's respective business, zoningoperations, governmental approvalsservicing, road accessfinancial condition, property taxesperformance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. In addition, Seller shall also make available to Purchasers, Agent and/or Verification Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the purpose of answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Purchasers shall enter into transactions with Seller based solely upon the information provided by Seller to Purchasers and/or Agent and the representations, warranties and covenants contained herein, and that Purchasers, Agent and/or Verification Agent, at its option, shall have the right at any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent time to conduct due itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchasers, Agent and/or Verification Agent shall not reduce or limit the Seller's representations, warranties and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personscovenants set forth herein. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receiptreimburse Purchasers, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, Agent and/or Verification Agent for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and all reasonable out‑of‑pocket due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in incurred pursuant to this AgreementSection 36.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Nationstar Mortgage Holdings Inc.)
Due Diligence. (A) Buyer shall have the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on From time to time, during regular business hours as requested by the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this AgreementLender, as the case may be, upon five (5) days' prior notice, Edison shall permit the Buyer or the Lender, as the case may be, or their respective agents or representatives, (A) to examine and Buyer shall provide make copies of and abstracts from all Records in the possession or under the control of Edison and its Subsidiaries or the agents of Edison or its Subsidiaries relating to Receivables and the Related Security, including, without limitation, any related Contracts, and (B) to visit the offices and properties of Edison and its Subsidiaries, for the purpose of examining such consents materials described in clause (A) above, and to discuss matters relating to Receivables and the Related Security or other documentation as Seller shall request so that Seller may do so.
(G) If Edison's performance hereunder or under the results Contracts with any of the officers or employees of Edison having knowledge of such matters or with Edison's independent public accountants; and (ii) within 90 days after the end of each Fiscal Year of Edison commencing with the Fiscal Year of Edison ending on June 30, 2002, Edison shall cause its independent public accountants to prepare and deliver to the Buyer’s investigation, studya written report of such accountants with respect to the Receivables, test the Credit and Collection Policy, Lockbox Account activity, Edison's performance of its obligations under (or report are not satisfactory to with respect to) this Agreement and the Receivables, all in scope and in a form reasonably requested by the Buyer or Sellerthe Lender, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment the case may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreementbe; provided, however, each party that after the occurrence and during the continuance of an Event of Default or Default under the Credit Agreement, the Buyer and the Lender shall pay their respective be permitted to take the actions described in preceding clause (i) without being subject to the amount of prior notice given and may request Edison to cause its independent public accounts to prepare the report contemplated in preceding clause (ii) as often as the Buyer or the Lender, as applicable, deems necessary or desirable. Edison shall reimburse the Buyer and the Lender for all reasonable fees costs and expenses as provided incurred by either of them in connection with the foregoing actions promptly upon receipt of the written invoice therefor; provided, that prior to the occurrence of a Default or Event of Default, such fees, costs and expenses shall not exceed $5,000 in any year of this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Edison Schools Inc)
Due Diligence. (A) The Sellers acknowledge that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and the Sellers, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Sellers agree that upon reasonable prior notice unless an Event of Default shall have the rightoccurred, after the Contract Date and upon advance in which case no notice to Selleris required, to access the Premises Sellers, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, investigate and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Sellers and/or the Custodian. The Sellers also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, the Sellers acknowledge that Buyer may purchase Mortgage Loans from the Sellers based solely upon the information provided by the Sellers to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence as review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to matters relating originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to the Premisesperform such underwriting. The Sellers agree to cooperate with Buyer and any third party underwriter in connection with such underwriting, including including, but not limited to the environmental conditionsto, zoning, governmental approvals, road access, property taxes, providing Buyer and any other conditions third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Sellers. The Sellers further agree that the Sellers shall pay all out-of-pocket costs and expenses incurred by Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, connection with Buyer’s request activities pursuant to this Section 27 (“Due Diligence Costs”); provided, that access be granted to such person Due Diligence Costs shall not exceed $25,000 per calendar year unless a Default or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days Event of receiptDefault shall have occurred, and with Seller’s approval, in which event Buyer shall have the right thereafterto perform due diligence, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose sole expense of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including Sellers without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining regard to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do sodollar limitation set forth herein.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. Licensee shall use commercially reasonable diligence--consistent with accepted business practices and legal requirements (Awhich diligence may, but not necessarily will, include application of scientific, technical, clinical and regulatory personnel, equipment, and time and resources towards the development of the Product and/or the Product as part of the Kit to meet Licensee's obligations under this Agreement), and taking into account issues of commercial viability, safety and efficacy -- to develop, obtain Regulatory Approval of, and commercialize the Product (and/or, in Licensee's discretion, the Product as part of a Kit). Licensee's development efforts with respect to the Oncology and Ophthalmology Disease Areas shall be guided by the development plan attached hereto as Exhibit B (hereinafter referred to as the "Development Plan"), but the failure to comply with such Development Plan shall not be deemed a failure of required diligence if Licensee's efforts reflect commercially reasonable diligence as described above. Licensee shall notify Meiji of any material amendment or modification of the Development Plan and the reasons therefor, and Meiji shall have the right to offer input and suggestions to Licensee regarding such amendment(s) Buyer and modifications(s); Licensee shall give due consideration to such input and suggestions, provided that such consideration shall be in accordance with commercially reasonable diligence as described above. In addition, Licensee shall use commercially reasonable diligence to achieve the [ * ]. Licensor recognizes, however, that commercial, safety or efficacy issues may not make it commercially reasonable to achieve such targets, and that many aspects of achieving such targets are beyond Licensee's reasonable control. Licensor further agrees that Licensee's exercise of commercially reasonable diligence with respect to a Product or a Product as part of a Kit for any one Indication in a Disease Area shall be deemed to satisfy Licensee's diligence obligations in such Disease Area. Licensor further agrees that, during the first [ * ] months following the Effective Date of this Agreement, Licensee's exercise of commercially reasonable diligence in the development of a Product or a Product as part of a Kit in any one Disease Area shall be deemed to satisfy Licensee's diligence obligations under this Agreement. Provided that it is reasonable to do so on grounds of commercial non-viability, toxicity or non-efficacy, Licensee shall have the right, after the Contract Date and upon advance exercised by giving notice in writing to Licensor, either not to commence development of a Product (including a Product as part of a Kit), or to cease development of a Product, or not to pursue Regulatory Approval or commercialization of a Product in one or more Disease Area(s) in a particular country or countries. In such case, at Licensee's option as indicated in its notice to SellerLicensor, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; scope of Licensee's rights under the license granted in this Agreement shall be reduced commensurate with the Disease Area(s) or countries Licensee elects to relinquish in such notice, or (ii) is Licensee may elect to reduce its license rights in Buyer’s possession respect to a specified country or countries or a specified Disease Area or Disease Areas to a "semi-exclusive license" as described, and on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this AgreementSection 6.4 below.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: License and Supply Agreement (Light Sciences Oncology Inc)
Due Diligence. (Aa) Each Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, each Seller Party, Settlement Agents, Approved Appraisers, Approved Investors and other parties which may be involved in or related to Transactions (collectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller Party agrees that upon reasonable prior notice unless an Event of Default shall have the rightoccurred and be continuing, after the Contract Date and upon advance in which case no notice to Selleris required, to access the Premises any Seller Party, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, investigate and conduct make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage ‑26‑ Loans in the possession or under the control of a Seller Party. Each Seller Party will use best efforts to cause Third Party Transaction Parties to cooperate with any due diligence as requests of Buyer. Each Seller Party also shall make available to matters relating Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the PremisesPurchased Mortgage Loan Schedule and the representations, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxeswarranties and covenants contained herein, and that Buyer, at its option, has the right at any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent time to conduct a partial or complete due diligence review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the name of any consultant, agent, contractor related Mortgaged Properties and otherwise re‑generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or other who Buyer desires engage a mutually agreed upon third party underwriter to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Mortgage Loans in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever Seller. The Seller Parties further agree that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against the Seller relating in any way associated with the conducting of any activity upon the Premises Parties shall pay all out‑of‑pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants activities pursuant to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars this Section 17 ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicableDue Diligence Costs”). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. The Issuer will authorize a collection of information regarding the Offering (A) Buyer shall have the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence PeriodInformation”), which collection the Issuer may amend and supplement from time to time, to be delivered by the Managing Broker-Dealer to the Selling Group Members (or their agents performing due diligence) unless extended in connection with their due diligence review of the Offering (collectively, “Additional Information,” and together with the Due Diligence Information, the “Confidential Information”). In the event a Selling Group Member (or its agent performing due diligence) requests access to additional information or otherwise wishes to conduct additional due diligence regarding the Offering, the Issuer or the Depositor and the Managing Broker-Dealer will reasonably cooperate with such Selling Group Member to accommodate such request. All Due Diligence Information received by written agreement the Managing Broker-Dealer and/or the Selling Group Members in connection with their due diligence review of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep the Offering are confidential and shall be maintained as confidential and not disclose disclosed by the Managing Broker-Dealer or the Selling Group Members except to the extent such information is disclosed in the Memorandum to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated hereinperson, including without limitation, adding Seller as an Additional Insured; obtaining waiver any sales representatives or potential investors. If the Managing Broker-Dealer or a Selling Group Member is required pursuant to legal process, including without limitation rules or regulations of subrogation; agreeing the SEC, FINRA, or any other governmental or regulatory authority with oversight authority with respect to give Seller sixty (60) days’ prior written notice upon policy cancellation the Managing Broker-Dealer or change; and providing subcontractor coverage (if applicable). Buyer further such Selling Group Member, to disclose any Confidential Information, unless the Issuer agrees to immediately provide otherwise, such party will promptly notify the Issuer to permit it to seek a copy protective order or take other appropriate action. Such Managing Broker-Dealer or Selling Group Member will cooperate in the Issuer’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information. If, in the absence of Exhibit “I” a protective order, the Managing Broker-Dealer or a Selling Group Member is, in the opinion of counsel, compelled as a matter of law to its insurance company and/or insurance agent. Upon Seller’s consentdisclose the Confidential Information, Buyer shall have such Managing Broker-Dealer or Selling Group Member may disclose to the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress person compelling disclosure only that part of the necessary approvals Confidential Information as are required by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are law to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreementdisclosed, as unless the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do soIssuer agrees otherwise.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Managing Broker Dealer Agreement (Cantor Fitzgerald Income Trust, Inc.)
Due Diligence. (A) Buyer shall have 4.1 The parties hereto acknowledge that as at the right, after date of this Agreement the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct Purchaser's due diligence enquiries into the Companies remain to be completed, and as to matters relating such this Agreement is conditional upon such enquiries being completed to the PremisesPurchaser's reasonable satisfaction in accordance with the following provisions of this Section 4:
(a) the Shareholders shall make available to the Purchaser its agents and advisers on a strictly confidential basis subject to at all times the terms of the Non-Disclosure Agreement between the parties dated 21st January 2004 (the "Non-Disclosure Agreement") such documentation as the Purchaser may request with regard to the Companies, including (but not limited to) Financial Statements, financial and accounting records, contracts (with both suppliers and customers of the businesses of the Companies) employment contracts and records, filing documents with Companies House, HM Inland Revenue tax returns, tax calculations and assessments, HM Customs and Excise VAT records and returns, employee and company National Insurance records and returns;
(b) the Purchaser shall be entitled to take copies of such documentation as it shall reasonably require except only the agreement dated 1st September 2002 between T-Mobile (UK) Ltd. and Promotions (in which case the Purchaser shall still be entitled to inspect such document) and the Purchaser shall be entitled to raise any reasonable and proper enquiries on such documentation inspected and/or requested or such other information provided by the Shareholders to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers Purchaser;
(c) the Shareholders will respond to Seller ten (10) days all enquiries raised by the Purchaser in advance of entry, written notice of Buyer’s intent to conduct connection with such due diligence enquiries with all reasonable expedition and in reasonable and proper detail as would be expected in connection with a transaction of the nature anticipated by this Agreement;
(d) the Purchaser's due diligence enquiries and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer Shareholders responses thereto shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement completed by February 10, 2004 (or in the event the transaction contemplated by such later date as the parties fails may mutually agree) when the Purchaser shall state in writing to close.
(C) The confidentiality obligation herein does not apply to any information the Shareholders that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on Purchaser shall be satisfied as to its enquiries with regard to the date hereof; (iii) becomes public after Companies and the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free remaining provisions of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer this agreement shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain remain in full force and effect, effect unconditionally or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00ii) per occurrence and Four million Dollars ($4,000,000.00) in that the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer Purchaser shall have the right determined, at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent entire discretion that it does not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects wish to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition Purchased Shares on the Premises and/or adjustment terms and conditions of this Agreement in which case the respective parties shall be released of their obligations to the purchase price as a result thereof. If other hereunder and the terms and conditions of this Agreement shall be released in their entirety with no obligation on the part of either party to the other save for any reason (i) ongoing obligations of confidentiality pursuant to the purchase is not subsequently closedNon-Disclosure Agreement and (ii) the Purchaser's obligation, then Buyer shall grant Seller ownership if applicable pursuant to the Term Sheet, to deliver to the Shareholders' Solicitors the sum referred to under the heading "Deal Protection" within the Term Sheet, such sum to be paid, if applicable, within two working days of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery date of the deed and termination of this Agreement, if anyPurchaser's notification that they do not intend to proceed.
Appears in 1 contract
Sources: Share Purchase Agreement (Zim Corp)
Due Diligence. (Aa) Buyer, is purchasing the Property based upon Buyer’s own due diligence and inspections and, except as expressly set forth in this Agreement, is not relying upon any representations and warranties of Seller whatsoever. If, prior to Settlement Buyer shall undertake any inspections or testing of or concerning the Property, Buyer shall in all respects adhere to the provisions of this Agreement related thereto. Notwithstanding the foregoing, Seller represents and warrants that the Property is zoned IR – Restricted Industrial Zone (Cherry Hill Township) under the applicable Zoning Ordinance and/or Codes and that the current use of the Property complies with such zoning. At Settlement, if or as required by applicable law, Seller shall deliver to Buyer a certification from the appropriate governmental agencies as are applicable, confirming such zoning and including any violation of the environmental, housing, building and safety codes or fire ordinances and/or other applicable statutes or laws and such other instruments or certificates required to be issued under applicable law prior to the conveyance of the Property. If repairs, remediation or replacements to the Property are required by the applicable governmental authorities prior to the issuance of the foregoing certificates, Seller shall have the right, after at its election, to (i) make such repairs, remediation or replacements at its sole cost prior to the Contract Settlement Date, (ii) give Buyer access to the Property to make such repairs, remediation or replacements at Seller’s sole cost and shall reimburse or at closing credit Buyer for such costs and expenses against the Purchase Price. In the event that such repairs, remediation or replacements cannot be made prior to the Settlement Date or Seller elects not to make such repairs, remediation or replacements prior to the Settlement Date because such repairs, remediation or replacements are not required by any municipality or other governmental agency in order to close the transaction, the parties shall leave, from the Purchase Price and/or Seller’s funds, in escrow with the Escrow Holder an estimated sum sufficient to reimburse Buyer for the costs thereof actually incurred (the “Repair Escrow”), which sum shall be released to Buyer immediately upon the completion and upon advance notice billing for such repairs with any balance remaining thereafter being paid to Seller. In the event that the Repair Escrow is insufficient to reimburse Buyer for the costs of such repairs and replacements, Seller shall remain liable to access Buyer for the Premises amount of such deficiency and Seller’s obligation to inspectpay such deficiency shall survive the Settlement or other termination of this Agreement.
(b) Seller (if not previously delivered) shall deliver to Buyer within three (3) business days of the date of this Agreement (and Buyer shall confirm promptly receipt of same) copies of such documents, investigate and conduct due diligence as to matters relating to the Premisesleases, plans, designs, service agreements, warranties, surveys, building plans including but not limited to the environmental conditionsall property records pertaining to operating expenses for at least three (3) years, zoningCertificates of Occupancy, governmental approvalsLand Surveys, road accessRoof Warranties, property taxesEnvironmental Reports, Building and Structural plans, inspection reports, fire safety maintenance records, and any other conditions that reports reasonably requested regarding the Property as are in Seller’s possession or control (such documents, together with any other materials related to the Property delivered by Seller to Buyer deems necessary; provided that Buyer delivers with respect to the Property are herein referred to as the “Property Documents”). The Property Documents shall be returned to Seller ten (10) days if this Agreement is terminated for any reason and Buyer may not retain any copies, summaries, or extracts in advance of entryany form or format. Notwithstanding the foregoing, written notice of Buyer’s intent to conduct due diligence and the name Seller makes no representation or warranty of any consultantkind or nature whatsoever regarding the Property Documents except that they are true, agentcorrect and unaltered copies of such documents or disclosures as are in Seller’s possession. In addition to the forgoing, contractor FRS, shall deliver to Buyer for review FRS’s financials for at least 6 years and year to date and any other reports reasonably requested (the “FRS Documents”). The FRS Documents shall be returned to FRS if this Agreement is terminated for any reason and Buyer may not retain any copies, summaries, or extracts in any form or format. Seller and FRS hereby represent and warranty the truth and accuracy of the FRS Documents and that they are true, correct and unaltered copies of such documents or disclosures as are in Seller’s and/or FRS’s possession. Throughout the Due Diligence Period (as defined below) Seller shall deliver to Buyer such other who Buyer desires documents or information relating to enter the Premises for Property or the Tenant as are in Seller’s or Tenant’s possession or under Seller’s or Tenant’s control, or reasonably obtainable by Seller.
(c) From the date hereof until the completion of the Settlement or earlier termination of this purposeAgreement, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts permit Buyer and Buyer’s representatives to respond inspect and examine the Property at all reasonable times during weekday hours (9 a.m. to 5 p.m.) with reasonable advance notice, such request from Buyer within ten (10) days notice to be given by e-mail or facsimile, subject to the rights of receipt, and with Seller’s approvaltenants as to the leased areas. Notwithstanding the forgoing, Buyer and/or Buyer’s representatives shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives be permitted to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study public areas of the Premises as Buyer deems necessary. Seller will provide access Property at any and all times such areas are open to available and relevant documents and recordsthe public. Buyer has ninety shall not conduct any invasive testing or examinations except by a licensed third party professional inspection or engineering company, and all such testing or examinations may only be upon Seller’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, and Buyer shall restore the Property to its condition prior to such testing or examinations at Buyer’s sole cost and provide Seller with copies of all such inspections and reports conducted by or on behalf of Buyer regarding the Property.
(90d) Buyer is granted the period from the Effective Date until 5:00 p.m. EDT on the date which is Thirty (30) days from after the Contract Date to complete their investigation and due diligence date of execution of this Agreement by all parties (hereinafter the “Due Diligence Period”) unless extended ), to perform such due diligence as Buyer deems appropriate to satisfy itself as to the use of the Property for its intended purpose, applicable zoning regulations, availability of utilities, environmental matters including any environmental studies required by Buyer and/or Buyer’s lender, and review of all Property Documents and leases affecting the Property and review of Tenant’s financial condition. If Buyer is dissatisfied for any or no reason during said Due Diligence Period, Buyer in its sole discretion and without explanation may terminate this Agreement by written agreement notice via hand delivery, email, facsimile or in any other manner permitted by this Agreement, which notice is deemed given when sent to Seller electronically or when received by Seller if given by any other means, at or before 5:00 p.m. prevailing EDT on the date which is Thirty (30) days after the date of Seller per section 2A execution of this agreementAgreement by all parties, time being strictly of the essence; in which event the Deposit shall be returned to Buyer, Buyer shall return all Property Documents to Seller and this Agreement shall thereupon terminate except for those provisions which expressly survive termination (the “Due Diligence Termination Notice”), and the parties shall have no further liability or obligation each to the other hereunder except for those provisions which expressly survive the termination of this Agreement. Should Buyer fail to give the Due Diligence Termination Notice as required hereby, Buyer shall be deemed to have waived the right to terminate this Agreement pursuant to this Section 8(d) and shall be obligated to complete the purchase of the Property without any abatement of the Purchase Price.
(Be) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysindemnify, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnifyprotect, defend, and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors, and other agents, and their respective partners, members, trustees, beneficiaries, employees, officers, directors, and shareholders (collectively, the “Indemnified Parties”) harmless Seller from and against any and all property damageliabilities, personal injurydemands, and/or death claimsactions, causes of action, suits, demandsclaims, liabilitieslosses, damages, expenses and costs, and expenses (including attorney feesincluding, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller reasonable attorneys’ fees, court costs, and litigation expenses) suffered or incurred by any of the Indemnified Parties as an Additional Insured; obtaining waiver a result of subrogation; agreeing to give Seller sixty any activities of Buyer (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy including activities of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent any of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during agents and employees) relating to the Permitting Period and milestones to monitor the progress Buyer’s inspection of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plansProperty including, surveyswithout limitation, environmental site assessmentsmechanics’ liens, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining damage to the Property, which itemsinjury to persons or property resulting from such activities in connection therewith as caused by the Buyer or its representatives. If the Property is disturbed or altered in any way as a result of such activities, Buyer shall promptly restore the Property to its condition existing prior to the extent not already provided to Seller at commencement of such activities which disturb or alter the time Property. The terms of any this Section 8(f) shall survive Settlement or the earlier termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(Hf) In Buyer agrees that it or its affiliate maintain and cause any of its representatives or agents conducting any activities on the event Buyer elects to proceed with the purchase Property on behalf of the Premises Buyer to maintain and have in effect commercial general liability insurance with such environmental concern “AS ISlimits of not less than One Million and no/100 Dollars ($1,000,000.00) for personal injury, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subpartsincluding bodily injury and death, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if anyproperty damage.
Appears in 1 contract
Due Diligence. (Aa) Each Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, the Underlying Transactions, the TPO Mortgage Loans and the Sellers, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller agrees that upon reasonable prior notice (unless an Event of Default shall have occurred, in which case no notice is required) to the rightSellers, after the Contract Date and upon advance notice Buyer or its authorized representatives will be permitted during normal business hours to Sellerexamine, to access the Premises to inspect, investigate and make copies and extracts of, the Mortgage Files, the Underlying Transactions or TPO Mortgage Loans and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Sellers and/or the Custodian. The Sellers also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files, Mortgage Loans, the Underlying Transactions and the TPO Mortgage Loans.. Without limiting the generality of the foregoing, each Seller acknowledges that Buyer may purchase Mortgage Loans, the Underlying Transactions and TPO Mortgage Loans from the Sellers based solely upon the information provided by the Sellers to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence as review on some or all of the Mortgage Loans, the Underlying Transactions and/or TPO Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to matters relating originate such Mortgage Loan, Underlying Transaction or TPO Mortgage Loan. Buyer may underwrite such Mortgage Loans, Underlying Transaction or TPO Mortgage Loan itself or engage a mutually agreed upon third party underwriter to the Premisesperform such underwriting. The Sellers agree to cooperate with Buyer and any third party underwriter in connection with such underwriting, including including, but not limited to the environmental conditionsto, zoning, governmental approvals, road access, property taxes, providing Buyer and any other conditions third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans, the Underlying Transactions and TPO Mortgage Loans in the possession, or under the control, of the Sellers. The Sellers further agree that the Sellers shall pay all out-of-pocket costs and expenses incurred by Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, connection with Buyer’s request activities pursuant to this Section 17 (“Due Diligence Costs”); provided, that access such Due Diligence Costs shall not exceed the Due Diligence Cap per calendar year unless a Default or Event of Default shall have occurred and be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receiptcontinuing, and with Seller’s approval, in which event Buyer shall have the right thereafterto perform due diligence, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose sole expense of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including Sellers without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining regard to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do sodollar limitation set forth herein.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (New Century Financial Corp)
Due Diligence. (Aa) Each Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, each Seller Party, Settlement Agents, Approved Appraisers, Approved Investors and other parties which may be involved in or related to Transactions (collectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller Party agrees that upon reasonable prior notice unless an Event of Default shall have the rightoccurred and be continuing, after the Contract Date and upon advance in which case no notice to Selleris required, to access the Premises any Seller Party, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, investigate and conduct make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of a Seller Party. Each Seller Party will use best efforts to cause Third Party Transaction Parties to cooperate with any due diligence as requests of Buyer. Each Seller Party also shall make available to matters relating Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the PremisesPurchased Mortgage Loan Schedule and the representations, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxeswarranties and covenants contained herein, and that Buyer, at its option, has the right at any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent time to conduct a partial or complete due diligence review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the name of any consultant, agent, contractor related Mortgaged Properties and otherwise re‑generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or other who Buyer desires engage a mutually agreed upon third party underwriter to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as third LEGAL02/33574838v9 ‑26‑ party underwriter in connection with such underwriting, including, but not limited to, providing Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided underwriter with access to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Mortgage Loans in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever Seller. The Seller Parties further agree that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against the Seller relating in any way associated with the conducting of any activity upon the Premises Parties shall pay all out‑of‑pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants activities pursuant to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars this Section 17 ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicableDue Diligence Costs”). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer Seller Parties shall not be entitled required to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then pay Due Diligence Costs incurred by Buyer shall grant Seller ownership in excess of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentDue Diligence Cap unless a Default or Event of Default has occurred and is continuing.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. (Aa) Buyer shall have the right, For a period of 30 days after the Contract Effective Date and upon advance notice to Seller, to access (the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”), Buyer and his agents and representatives shall be entitled to conduct an inspection of the Premises, which may include, but shall not be limited to, the rights to (1) unless extended enter on the Premises to perform inspections and tests, including, but not limited to, inspection, evaluation and testing of the heating, ventilation and air-conditioning systems and all components thereof, the roof of the building, the parking lots, all structural and mechanical systems within the building, including, but not limited to, sprinkler systems, power lines and panels and plumbing; and (2) make investigations with regard to zoning, environmental, building code and other legal requirements, including, but not limited to, an environmental assessment. If Buyer, in his sole and absolute discretion, determines that the results of any inspection, test or examination do not meet Buyer’s criteria for purchase or operating of the Premises in the manner contemplated by Buyer, or if Buyer, in his sole discretion, otherwise determines that the Premises is unsatisfactory to him, then Buyer may terminate this Agreement by written agreement notice to Seller, given not later than the last day of the Due Diligence Period. Upon such termination, the ▇▇▇▇▇▇▇ money shall be returned to Buyer and, except as otherwise provided in this Section, neither of the Parties shall have any further liability to the other hereunder. In the event Buyer fails to notify Seller per section 2A of his intent to terminate this agreementAgreement prior to the expiration of the Due Diligence Period, Buyer’s right to terminate this Agreement shall be waived and become null and void.
(Bb) Buyer agrees that they will keep confidential All inspections, investigations, tests and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period appraisals required by Buyer under this Section shall be at Buyer’s expense unless otherwise expressly provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to closethis Agreement.
(Cc) The confidentiality obligation herein does not apply to Neither Buyer, nor any information that (i) is public knowledge on of its agents or representatives, shall damage the date hereof; (ii) is in Premises or any portion thereof, except for any immaterial damage caused by environmental and other tests, all of which shall promptly be repaired by Buyer at Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by sole cost and expense. Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free agrees to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, indemnify and defend Seller and hold Seller harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilitiesactions, damageslawsuits, expenses damages and costs, (including attorney reasonable attorneys’ fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise arising out of any act or result from any claimomission of Buyer, suitor its agents and/or representatives, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation review. The foregoing obligation shall survive the closing of this transaction and any termination of this Agreement.
(d) The physical condition of the PremisesPremises shall be substantially the same on the date of possession, as it exists as of the Effective Date of this Agreement, reasonable wear and tear excepted. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon inspect the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones 48-hour period immediately prior to monitor Buyer’s progress for submission of required applications during the Permitting Period possession and milestones to monitor the progress of the necessary approvals by the appropriate governmental agenciesclosing.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Agreement for Sale of Real Estate
Due Diligence. (Aa) Buyer shall have Seller acknowledges that Purchaser has the right, after the Contract Date and upon advance notice right to Seller, to access the Premises to inspect, investigate and conduct perform continuing due diligence as to matters relating reviews with respect to the PremisesPurchased Assets, including but not limited to the environmental conditionsSeller Parties and Servicer for purposes of verifying compliance with the representations, zoningwarranties and specifications made hereunder, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsotherwise. Seller agrees to use its best efforts to respond to such request from Buyer within ten that upon reasonable prior notice (10) days unless an Event of receiptDefault has occurred and is continuing, and with Seller’s approvalin which case no prior notice shall be required), Buyer Seller shall have the right thereafterprovide (or shall cause any other Seller Party or Servicer, at its own risk, cost and expenseas applicable, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide provide) reasonable access to available Purchaser and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit agents, representatives or permitted assigns to the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to offices of Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it such other Seller Party or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this AgreementServicer, as the case may be, during normal business hours and Buyer shall provide permit them to examine, inspect, and make copies and extracts of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such consents Purchased Assets in the possession or other documentation as Seller shall request so that Seller may do sounder the control of such party.
(Gb) If Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the results time of any inspection pursuant to Article 28(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required and there shall be no limitation on frequency), by phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about any of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Sellerforegoing Persons, or an unacceptable environmental concern is revealedany other matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser may enter into Transactions with Seller based solely upon the information provided by Seller to Purchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Purchaser may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to cooperate with Purchaser and any third party underwriter in connection with such underwriting, including, but not limited to, providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or Buyer is unable to secure acceptable financing solely as determined by Buyerunder the control, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective Seller Party or any Affiliate thereof.
(e) Seller agrees to reimburse Purchaser on demand for any and all costs and expenses as provided (including, without limitation, the fees and expenses of counsel) incurred by Purchaser in connection with its due diligence activities pursuant to this AgreementArticle 28.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Realty Finance Trust, Inc.)
Due Diligence. (A) Buyer shall have the rightThe Senior Lender may carry out legal, after the Contract Date financial, technical and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct insurance due diligence on any proposal for an Authority Change: in the case of a Low Value Change, when the Low Value Change Threshold has been exceeded; or in the case of a Medium Value Change where the Medium Value Change Threshold has been exceeded; or in the case of a High Value Change as required. In the event that the Senior Lender needs to matters relating to procure such legal, technical, financial or insurance due diligence, the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, parties shall agree a budget and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises capped cost for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in provided that the costs for the due diligence activities shall not exceed [2%] of the overall value of the relevant Authority Change. The Contractor shall procure that: the Senior Lenders shall promptly give any consents which are required pursuant to the Financing Agreements to any Change and shall only withhold its consent on one (or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during more) of the due diligence period by Buyer grounds set out in paragraph 2.1; the Insurance Broker shall be provided notified by the Contractor promptly of any material Change (materiality being judged in relation to Seller the size and nature of the scope of the Change and any necessary authorisation obtained). Where the Authority has issued a Confirmation Notice in respect of a Change: where applicable, the parties shall execute any contract amending this Contract; the Contractor shall promptly implement any Change within the timescales set out in the Confirmation Notice and shall do so in a reasonable time period prior manner which minimises any inconvenience to Closing. All due diligence materials the Authority; the Contractor shall notify the Authority when it believes the Change has been completed; where applicable, the Unitary Charge shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies revised in accordance with the terms Schedule Part 19 (Revision of Base Case and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicableCustody). Buyer further agrees No amendments of this Contract shall be made as a result of a Low Value Change [or a Medium Value Change,] unless otherwise agreed between the parties. If the Contractor does not: respond to immediately provide a copy Low Value Change Request or an Authority Change Notice (in the case of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consenta High Value Change either at Stage 1 or Stage 2); or complete or implement the Change within the specified timescales, Buyer then the Unitary Charge shall have be abated at the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress rate of the necessary approvals by Agreed Abatement for every day of delay from the appropriate governmental agencies.
date the Contractor Response should have been submitted or the Change should have been completed or implemented until the date the Contractor Response is submitted or the Change is completed or implemented (F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be) provided that the operation of this paragraph will be the sole financial remedy of the Authority, and Buyer shall provide without prejudice to the Authority’s rights under Clause 68 (Compensation on Termination for Contractor Default), in respect of such consents non-compliance and provided that this paragraph will not apply where the cause of such non-compliance was the act or other documentation as Seller shall request so that Seller may do so.
(G) If the results omission of the Buyer’s investigation, study, test Authority or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller any Authority Related Party. All Changes shall be relieved implemented under the terms of this Contract and in particular all provisions applying to the Works shall apply to the carrying out of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test additional works or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment changes to the purchase price as Works. The Contractor shall keep a result thereof. If for any reason record of all Changes (both completed and outstanding) and provide the purchase is not subsequently closed, then Buyer shall grant Seller ownership of Authority with these records whenever reasonably required by the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentAuthority.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Residual Waste Treatment Contract
Due Diligence. (A) Buyer Subject to Section 4.2 below, Developer shall have the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten a period of one hundred twenty (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90120) days from the Contract Date to complete their investigation and due diligence date of Developer’s receipt of the Survey (hereinafter the “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
within which to, at Developer’s sole cost and expense (B) Buyer agrees that they will keep confidential and not disclose subject to any third party except its attorneysthe Due Diligence Reimbursement as provided in Section 4.3 below), lenders, and consultants, any of the complete all due diligence materials work it deems necessary or advisable on the Parcels comprising the Project (and any additional environmentalimprovements located thereon), and/or other studiesincluding, testswithout limitation, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical datatitle, survey, and/or drawing generated during soils, property condition, environmental and feasibility studies and tests (“Due Diligence Activities”; and the costs associated with such Due Diligence Activities are hereinafter referred to as the “Due Diligence Costs”). Developer acknowledges that all Parcels necessary for the Project are being contributed by ▇▇▇▇▇ in there “AS IS” “WHERE IS” condition, and without any representation or warranty of any kind whatsoever by ▇▇▇▇▇, and Developer will rely solely on the results of its own due diligence period by Buyer with respect to the Parcels. Prior to entering onto any Parcel to conduct any Due Diligence Activities, MILRA and Developer shall be provided enter into an “Access and Confidentiality Agreement” in form and substance agreeable to Seller within a reasonable time period prior MILRA, which shall provide for, among other things, Developer’s (including its consultants, agents and vendors) obligation to Closingcarry insurance covering Developer’s Due Diligence Activities on such Parcel(s). All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer Developer shall indemnify, defend, defend and hold harmless Seller MILRA (including MILRA’s officers, agents, employees, and the MILRA Board) from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and claims, costs, fees and expenses whatsoever (including attorney fees, consultant reasonable attorney’s fees and other legal costs), of whatever kind or nature whatsoever that may arise court costs at trial and all appellate levels) arising out of or result resulting from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will ▇▇▇’s Due Diligence Activities on a Parcel, except to the extent caused by the gross negligence or willful misconduct of MILRA. For purposes of clarification and for avoidance of doubt, the indemnification set forth herein above shall further be returned (with interest)limited to the proportion of the fault attributable to the Developer, in the event that it is determined by a court having proper jurisdiction that both parties' actions or inactions caused the claim giving rise to this indemnification. This indemnification survives the termination of this Master Development Agreement and any Project Area Development Agreement, and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In also survive the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test dissolution or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereofextent allowed by law, the bankruptcy of Developer. If for any reason Within ten (10) days after the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination Effective Date of this Agreement, if anyMILRA shall make available to Developer all information, documents, investigations, reports, studies, analyses and surveys in MILRA’s possession relating to the Overall Property and/or any improvements located thereon (the “Due Diligence Documents”), all without any representation or warranty of any kind or character whatsoever by MILRA with respect to such Due Diligence Documents. Developer shall have the right to contact any consultant, contractor, engineer, or entity that prepared such Due Diligence Documents to obtain such party’s consent to rely on the Due Diligence Documents, and MILRA shall cooperate with Developer in Developer’s efforts to obtain such consent.
Appears in 1 contract
Sources: Master Development Agreement
Due Diligence. (A) Buyer shall have the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons8.1. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study Purchaser has ordered an update of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended Owner’s Policy issued by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money Title Guaranty Company on November 4, 1996, Policy Number ▇-▇▇▇▇-▇▇▇▇▇▇▇ (the “Original Policy”). The parties acknowledge that such update will not be returned completed until after the Closing. If the update discloses Title Defects (with interest)as that term is hereinafter defined) which are not satisfactory to Purchaser, in Purchaser’s reasonable discretion, Purchaser shall send written notice to Seller (the “Title Notice”) on or before the first to occur of 5 days after Purchaser’s receipt of such update or 5:00 p.m. November 30, 2004, which shall specify (i) how such matters constitute Title Defects, (ii) the reasons why such Title Defects are not reasonably satisfactory to Purchaser, and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(Hiii) the curative steps necessary to remove the basis for Purchaser’s disapproval or the basis upon which such matters constitute Title Defects. In the event Buyer elects Purchaser fails to proceed with send the purchase Title Notice, Purchaser shall be deemed to have no objections to title and be deemed to have waived its rights under this Section 8.1. In the event the Title Defects are estimated, in writing by Purchaser’s counsel attached to the Title Notice, to cost between $5,000 and $14,999.99, exclusive of the Premises with such environmental concern “AS ISattorney’s fees, WHERE IS, WITH ALL FAULTS”, Buyer Purchaser’s sole remedy under this Contract shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or an adjustment to the purchase price as a result thereofPurchase Price in the same amount, which Seller shall deliver within 30 business days following receipt by Seller of the Title Notice in the form and manner permitted by Section 2.2. In the event the Title Defects are estimated, in writing by Purchaser’s counsel attached to the Title Notice, to cost $15,000.00 or more, exclusive of attorney’s fees, Seller shall have 30 business days following receipt by Seller of the Title Notice to elect to, in its sole discretion, (a) cure or remove any such Title Defects disclosed in the Title Notice, (b) repurchase the Beneficial Interest for the Purchase Price, or (c) deliver to Purchaser an adjustment to the Purchase Price in the amount of said estimated costs. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership elects either of (b) or (c) of the final report immediately preceding sentence, Seller shall, within 30 business days following receipt by Buyer’s consultantSeller of the Title Notice, with Seller having deliver the right appropriate funds to utilize Purchaser in the report as if Seller had commissioned the site assessment.
(I) The provisions form and manner permitted by Section 2.2. For purposes of this SectionContract, its subparts, and Exhibit the term “ITitle Defects” shall survive delivery not include: (a) any condition (other than environmental) of the deed Property or the title thereto which existed on March 31, 2000, whether or not the same appeared on Schedule B of the Original Policy; and termination (b) any condition (other than environmental) of this Agreementthe Property or title thereto, if anywhich does not preclude the present use of the Property.
Appears in 1 contract
Due Diligence. (A) The Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and the Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Seller agrees that upon reasonable prior notice unless an Event of Default shall have occurred, in which case no notice is required, to the right, after the Contract Date and upon advance notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Seller and/or the Custodian. The Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, the Seller acknowledges that Buyer may purchase Mortgage Loans from the Seller based solely upon the information provided by the Seller to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence as review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to matters relating originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to the Premisesperform such underwriting. The Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including including, but not limited to the environmental conditionsto, zoning, governmental approvals, road access, property taxes, providing Buyer and any other conditions third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Seller. The Seller further agrees that the Seller shall pay all out-of-pocket costs and expenses incurred by Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, connection with Buyer’s request activities pursuant to this Section 26 (“Due Diligence Costs”); provided, that access be granted to such person Due Diligence Costs shall not exceed $25,000 for each year, measured from the date of this Repurchase Agreement and each anniversary of the date of this Repurchase Agreement thereafter unless a Default or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days Event of receiptDefault shall have occurred, and with Seller’s approval, in which event Buyer shall have the right thereafterto perform due diligence, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement sole expense of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining regard to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do sodollar limitation set forth herein.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. Buyer will have until the expiration of the tenth day (AThe "Review Period") Buyer shall have the rightafter delivery of each of following items, after the Contract Date and upon advance notice to be supplied by Seller, to access the Premises to inspect, investigate conduct all of its inspections and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and satisfy itself regarding each item, the name Property, and this transaction. Buyer agrees to indemnify and hold Seller harmless for any loss or damage to the Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS Purchase Agreement for: Children's World - Moreno Valley, CA Entire Property or persons caused if Buyer or its agents arising out of any consultant, agent, contractor such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance commitment for an Owner's Title insurance policy (see paragraph 8 below).
(b) Copies of a Certificate of Occupancy or other who Buyer desires such document as of the date reflected thereon as may be in Seller's possession certifying completion and granting permission to enter permanently occupy the Premises for this purposeimprovements on the Entire Property.
(c) Copies of an "as built" survey of the Property done concurrent with Seller's acquisition of the Property.
(d) Lease of the Property showing occupancy date, with Buyer’s request that access be granted lease expiration date, rent, and security deposit, if any, and Guarantys, if any, accompanied by such tenant financial statements as provided to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten by the Tenant and/or Guarantors.
(10e) Within thirty (30) days after execution of receipt, and with Seller’s approvalthis Agreement by both parties, Buyer shall have the right thereafter, at its own risk, cost to inspect and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study obtain further investigations of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and recordsProperty (the "Inspection Period"). Buyer has ninety (90) days from the Contract Date to complete their investigation shall indemnify and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of hold Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to harmless for any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities loss or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure damage caused by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises agents in connection with Buyer’s due diligence the inspection. Buyer acknowledges that the information provided and to be provided by Seller with respect to the Property and to the Tenant and Guarantors of Lease was obtained from a variety of sources and Seller neither (a) has made independent investigation or verification of such information, or (b) makes any representations as to the accuracy or completeness of such information. Seller is not aware that such information is inaccurate or misleading. At closing, Seller shall provide Buyer with an affidavit under penalty of perjury, that Seller is not a "foreign person". Buyer may cancel this agreement for ANY REASON in its sole discretion by delivering a cancellation notice by certified mail, return receipt requested, or by personal delivery to Seller and escrow holder before the expiration of the PremisesReview Period or Inspection Period. Such notice shall be deemed effective only upon receipt by Seller. If Buyer further agrees that before it or cancels this Agreement as permitted under this Section, except for any escrow cancellation fees and any liabilities under sections 15(a) of this Agreement (which will survive), Buyer (after execution of such documents reasonably requested by Seller to evidence the termination hereof) shall be returned its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including deathFirst Payment, and property damage Buyer will have absolutely no rights, claims or interest of any type in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance connection with the Property or this transaction, regardless of any alleged conduct by Seller or anyone else. Unless this Agreement is canceled by Buyer pursuant to the terms and provisions outlined in Exhibit “I” attached hereto and incorporated hereinhereof, including without limitationif Buyer fails to make the Second Payment, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with be entitled to retain the First Payment and Buyer irrevocably will be deemed to have canceled this Agreement and Buyer Initial: /s/ JS /s/ JS /s/ ES /s/ WS Purchase Agreement for: Children's World - Moreno Valley, CA relinquish all rights in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property. If this Agreement is not canceled and the Second Payment is made when required, which items, to the extent not already provided to Seller at the time all of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by Buyer's conditions and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money contingencies will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreementdeemed satisfied.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Purchase Agreement (Aei Real Estate Fund Xv LTD Partnership)
Due Diligence. Each Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, Seller Parties, Settlement Agents, Approved Investors and other parties which may be involved in or related to Transactions (A) Buyer collectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Seller Parties agree that upon reasonable prior notice to the Seller Parties, unless an Event of Default shall have the rightoccurred, after the Contract Date and upon advance in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to Sellerexamine, to access the Premises to inspect, investigate and conduct make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of any Seller Party. The Seller Parties will use reasonable efforts to cause Third Party Transaction Parties to cooperate with any due diligence as requests of Buyer. The Seller Parties shall also make available to matters relating Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the PremisesMortgage Loan Schedule and the representations, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxeswarranties and covenants contained herein, and that Buyer, at its option, has the right at any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent time to conduct a partial or complete due diligence review on some or all of the Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the name of any consultant, agent, contractor related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or other who Buyer desires engage a mutually agreed upon third party underwriter to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Mortgage Loans in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever Seller. Each Seller Party further agrees that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises it shall pay all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation of activities pursuant to this Section 16 subject to the Premises. Buyer further agrees that before it or any of its consultants visit Due Diligence Cap; provided that, the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer Due Diligence Cap shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter not apply upon the Premises in accordance with the consent occurrence of Sellera Default or Event of Default.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. (Aa) Buyer Purchaser, or Purchaser’s representatives, shall have be entitled from time to time to enter upon the rightProperty during business hours, after the Contract Date and upon advance not less than one (1) business days prior notice to Seller, (at Seller’s election, with a representative of Seller accompanying Purchaser), subject to access the Premises rights of existing tenants, to inspect, investigate and conduct perform Purchaser’s due diligence as to matters relating review with respect to the PremisesProperty. Purchaser may perform such inspections and investigations, including but not limited to the environmental conditionsif any, zoningas Purchaser may reasonably deem appropriate, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entryPurchaser may not perform any tests, written notice of Buyerinspections or investigations which damage or reasonably could damage the Property without Seller’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsconsent. Seller agrees to use cooperate with Purchaser at no cost, expense or liability to Seller in conducting its best efforts to respond to such request from Buyer within ten (10) days of receiptdue diligence, including, without limitation, providing documents or instruments reasonably required by Purchaser and with in Seller’s approvalpossession and control. In order to assist Purchaser in its due diligence, Buyer Seller shall have deliver to Purchaser, the right thereafter, at its own risk, cost items set forth in Exhibit K to the extent the same are in Seller’s possession and expense, to enter, or cause its approved agents and representatives to enter upon control (the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence PeriodDocuments”) unless extended by written agreement ), which Due Diligence Documents are being delivered without any representation or warranty of Seller per section 2A of this agreementany kind or nature.
(Bb) Buyer Purchaser hereby confirms and agrees that they will keep confidential that:
(i) such inspections and investigations shall not disclose interfere with the existing tenants and shall take place during normal business hours upon reasonable prior notice to any Seller (at Seller’s option, in the presence of Seller’s representatives), Purchaser shall promptly pay to all third party parties performing such inspections or investigations and all fees and other monies due them for such services;
(ii) except as may be required by Purchaser to complete its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that as may be conducted required to consummate the transactions contemplated herein, or as may be required by either party. Any final reportlaw, analytical datauntil the Closing, surveyall information set forth in all documents to be reviewed hereunder by Purchaser, and/or drawing generated during the due diligence period by Buyer its employees and agents shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or held in strict confidence by Purchaser;
(iii) In the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein Closing does not apply occur or this Contract of Sale terminates for any reason Purchaser shall promptly return to any information that (i) is public knowledge on Seller the date hereof; (ii) is in Buyerdocuments obtained from Seller and Seller’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; agents;
(iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free Purchaser shall not suffer or permit any lien, claim or charge of any confidentiality obligation; kind whatsoever to attach to the Property due to any acts or omissions of Purchaser or its agents, contractors or employees;
(v) is No phase II environmental test, audit or inspection or any other invasive test shall be performed or undertaken by or on behalf of Purchaser without the subject prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed, provided that Purchaser shall not engage a Licensed Site Remediation Professional to perform or undertake any court order test, audit or other legally-mandated disclosure.inspection;
(Dvi) Buyer Purchaser shall indemnify, defend, restore any damage or disturbance to the Property resulting from such inspections or investigations and shall indemnify defend and hold Seller and its members, principals and affiliates harmless Seller from and against any and all property damage, personal injury, and/or death claims, suitslosses, demandsjudgments, liabilitiespenalties, fines, costs, damages, expenses and costs(including, (including attorney feeswithout limitation, consultant attorney’s fees and other legal costs)disbursements) or liabilities (collectively, “Losses”) incurred by Seller or any of whatever kind its affiliates by reason of or nature whatsoever arising out of Purchaser’s or Purchaser’s agents’, contractors’ or employees’ entry onto the Property or any of its or their acts or omissions while on the Property except to the extent that the Losses arise out of the negligence or willful misconduct of Seller; and
(vii) During the term of this Contract of Sale and prior to Purchaser or its contractors or agents entering on the Property, Purchaser or its contractors or agents shall maintain commercial general liability insurance with combined single limits of not less than $1,000,000 per occurrence and general aggregate limit of not less than $2,000,000 for bodily injury and property damage, covering claims which may arise out of or result from any claim, suit, act, judgement, demand acts or which may be brought against Seller relating in any way associated with omissions by Purchaser or its contractors on or at the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants Property issued by insurance companies authorized to do so, Commercial General Liability business in New Jersey and having a rating of A-VIII better by Best’s rating guide; such liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, maintained by Purchaser and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding name Seller as an Additional Insuredadditional insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after each such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s contractor will carry ▇▇▇▇▇▇▇’▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreementcompensation insurance.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(Ic) The provisions of this Section, its subparts, and Exhibit “I” Section 2.1(b) shall survive delivery of the deed and termination of this Agreement, if anyContract of Sale for a period of three (3) years.
Appears in 1 contract
Due Diligence. (A) Seller acknowledges that Buyer shall have has the rightright to perform continuing due diligence reviews with respect to the Purchased Assets, after for purposes of verifying compliance with the Contract Date representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon advance reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the Premisespossession or under the control of Seller, including but not limited to the environmental conditionsPrimary Servicer, zoningInterim Servicer, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and servicer or sub-servicer and/or the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsCustodian. Seller agrees to use its best efforts reimburse Buyer for any and all reasonable out-of-pocket costs and expenses incurred by Buyer with respect to respond continuing due diligence on the Purchased Assets during the term of this Agreement, which shall be paid by Seller to such request from Buyer within ten (10) days after receipt of receipt, and with Seller’s approval, an invoice therefor. Seller also shall make available to Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, a knowledgeable financial or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical answering questions respecting the Purchased Asset Files and any other study the Purchased Assets. Without limiting the generality of the Premises as foregoing, Seller acknowledges that Buyer deems necessarymay enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Buyer may underwrite such Purchased Assets itself or engage a third party underwriter to perform such underwriting. Seller will provide access agrees to available cooperate with Buyer and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Purchased Assets in the possession, demandsor under the control, liabilities, damages, expenses of Seller. Seller further agrees that Seller shall reimburse Buyer for any and costs, (including attorney all attorneys’ fees, consultant fees costs and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises expenses incurred by Buyer in connection with Buyer’s continuing due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain on Eligible Assets and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of SellerPurchased Assets.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (ARC Realty Finance Trust, Inc.)
Due Diligence. (Aa) Prior to the Closing Date, Seller shall (i) give to Buyer shall have and to Buyer's counsel, accountants and other representatives (including financing sources), during normal business hours or otherwise as mutually agreed to by the rightparties, after and subject to the Contract Date and upon advance notice to supervision of Seller, all reasonable access to access all of the Premises to inspectproperties, investigate personnel, books, contracts, commitments, records and conduct due diligence as to matters files of or relating to the PremisesBusiness, including but not limited and (ii) furnish to Buyer and such representatives, subject to the environmental conditionssupervision of Seller, zoningall such additional documents and financial and other information concerning Seller as Buyer may from time to time reasonably request (collectively, governmental approvals, road access, property taxes, the "Information"). Seller and any Buyer agree to cooperate with each other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct connection with the due diligence and process in order to minimize unnecessary interruption to the name Business. As a condition to the furnishing of any consultantthe Information to Buyer, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best all reasonable efforts to respond treat the Information in confidence and to limit the dissemination of the Information to the officers and employees of the Buyer who need to know such request from Information for the purpose of evaluating it and to its consultants, lawyers, lenders and other advisors who are assisting the Buyer within ten in evaluating this transaction.
(10b) days of receiptPrior to the Closing, Buyer, and with Seller’s approvalBuyer's agents and consultants, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the PremisesReal Property and the buildings thereon to take photographs, upon advance notice to Seller, for the purpose of making make topographic and boundary surveys, testsdetermine the location of utilities, boringsinspect the structural components of such buildings and all building systems, inspectionsincluding plumbing, investigationselectrical, or conducting any architecturalheating, engineeringventilating, structural, economic, environmental, mechanical air conditioning and any other study systems and to conduct an environmental audit of the Premises Real Property and the area surrounding the Real Property. All inspections shall be at Buyer's expense and at reasonable times as Buyer deems necessary. Seller will provide access mutually agreed to available and relevant documents and records. Buyer has ninety (90) days from by the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementparties.
(Bc) If this Agreement terminates, (i) Buyer agrees that they will and its affiliates shall keep confidential and shall not disclose to use in any third party except manner for a period of three (3) years after the date of termination any Information obtained from Seller (whether before or after the date hereof) concerning its attorneysassets, lendersbusiness and operations, and consultantsunless such information is (A) ascertainable from published, any of the due diligence materials and any additional environmentalpublic or industry information, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period (B) known by Buyer shall be provided to independently of any investigation of Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination or hereafter obtained by Buyer independent of the agreement any investigation of Seller, or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is becomes public knowledge on the date hereof; through no fault of Buyer or Buyer's affiliates, and (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer any documents or its attorneys, lenders, copies of documents obtained from Seller or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer Seller's representatives shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide returned to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined destroyed by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. (A) Buyer Purchaser shall have the right, during the Due Diligence Period, to inspect the Property and to investigate existing zoning, the physical and environmental condition of the Property, the adequacy of existing utilities and any other factors Purchaser deems relevant in determining whether to purchase the Property. Within two (2) business days after the Contract Date Effective Date, Seller shall make available to Purchaser at the offices of Seller’s Counsel in Morristown, New Jersey all documentation in possession of Seller’s Counsel relating to environmental conditions at the Property (the “Environmental Documents”) and upon advance notice shall make available to the Purchaser’s environmental and property condition consultants at the Property a person in Seller’s employ knowledgeable about the Property’s use by Seller, and Seller’s counsel shall deliver to access the Premises to inspect, investigate Purchaser’s counsel a copy of Seller’s current title policy and conduct due diligence as to matters survey relating to the PremisesProperty. For purposes of conducting such inspections and studies, Purchaser shall have access to the Property at all reasonable times, subject to Section 4.2 below. If for any reason (including but not limited to Purchaser’s discovery during the Due Diligence Period of additional areas of environmental conditionsconcern not previously identified by Philips Electronics North America Corporation (“PENAC”) in the course of its investigation or remediation of the Property pursuant to the Industrial Site Recovery Act, zoningN.J.S.A. 13:1K-6 et al. (“ISRA”) or the absence of documentation evidencing PENAC’S responsibility to remediate the Property) or for no reason Purchaser is not satisfied with the results of its investigations, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers Purchaser may terminate this Agreement on notice to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and Escrow Agent given within the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement . In the event of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneyssuch termination, lendersthe Deposit, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided returned to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneysPurchaser, lenderswhereupon, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller except as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as expressly provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase , all rights and obligations of the Premises with respective parties hereunder shall be null and void. If Purchaser does not deliver such environmental concern “AS ISnotice of termination pursuant to this Section 4.1 within the Due Diligence Period, WHERE ISPurchaser shall conclusively be deemed to have waived its right of termination under this Section 4.1. Purchaser may, WITH ALL FAULTS”in its sole discretion, Buyer shall not be entitled to waive the balance of the Due Diligence Period at any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment time prior to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership end of the final report Due Diligence Period by Buyer’s consultantnotifying Seller, with Seller having in writing, in which instance the right Due Diligence Period will be deemed to utilize the report as if Seller had commissioned the site assessmenthave expired.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Agreement of Sale (Djo Inc)
Due Diligence. (Aa) Buyer shall have the rightSeller acknowledges that, after the Contract Date at reasonable times and upon advance reasonable notice to Seller, B▇▇▇▇ has the right to access the Premises to inspect, investigate and conduct perform continuing due diligence as to matters relating reviews with respect to the PremisesPurchased Assets, including but not limited to the environmental conditionsSeller Parties and Servicer for purposes of verifying compliance with the representations, zoningwarranties and specifications made hereunder, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsotherwise. Seller agrees to use its best efforts to respond to such request that upon reasonable prior written notice from Buyer within ten (10) days unless an Event of receiptDefault has occurred and is continuing, and with Seller’s approvalin which case no prior notice shall be required), Buyer Seller shall have the right thereafterprovide (or shall cause any other Seller Party or Servicer, at its own risk, cost and expenseas applicable, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide provide) reasonable access to available Buyer and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit agents, representatives or permitted assigns to the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to offices of Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it such other Seller Party or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this AgreementServicer, as the case may be, during normal business hours and Buyer shall provide permit them to examine, inspect, and make copies and extracts of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such consents Purchased Assets in the possession or other documentation as Seller shall request so that Seller may do sounder the control of such party.
(Gb) If Seller agrees that it shall, promptly upon reasonable request of Buyer, deliver (or shall cause to be delivered) to Buyer and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by B▇▇▇▇ in accordance with Article 26(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Buyer and any of its agents, representatives or permitted assigns (i) in person at the results time of any inspection pursuant to Article 26(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required and there shall be no limitation on frequency), by phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about any of the Buyer’s investigationforegoing Persons, studyor any other matters relating to the Transaction Documents or any Transaction that Buyer reasonably needs to discuss with such Person.
(d) Without limiting the generality of the foregoing, test or report are not satisfactory Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer or Sellerand the representations, or an unacceptable environmental concern is revealedwarranties and covenants contained herein, or Buyer is unable to secure acceptable financing solely as determined by and that Buyer, either at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Buyer may underwrite such Purchased Assets itself or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇engage a third-party underwriter to perform such underwriting. S▇▇▇▇▇ Money will be returned (agrees to cooperate with interest)B▇▇▇▇ and any third party underwriter in connection with such underwriting, and both including, but not limited to, providing Buyer and Seller shall be relieved any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of any further obligations under this AgreementSeller Party or any Affiliate thereof.
(e) Seller hereby acknowledges and agrees that Buyer shall have the right to commission and order an Appraisal of any Mortgaged Property at any time and from time to time; provided, however, each party that prior to the occurrence and continuance of either a Purchased Asset Event of Default with respect to a Purchased Asset or an Event of Default, Seller shall pay their respective not be responsible for the costs and expenses incurred by Buyer in obtaining more than one Appraisal of any Mortgaged Property related to any Purchased Asset subject to a Transaction hereunder in any twelve (12) month period (provided that the foregoing will not limit the ability of Buyer to obtain Appraisals at its own cost and expense). With respect to any Purchased Asset as provided to which a Purchased Asset Event of Default occurs after the Closing Date, at Seller’s expense, Buyer shall have the right to commission and order an Appraisal of the related Mortgaged Property and in this Agreementeach case to the extent requested by B▇▇▇▇, Buyer shall have the right to receive updated versions of the third party reports referenced on the Due Diligence Checklist. Seller shall cooperate with Buyer in connection with the commission or order of any Appraisal by Buyer, and Seller shall use commercially reasonable efforts to cause the applicable Mortgagor to cooperate with Buyer in obtaining any such Appraisal, including, without limitation, by providing Buyer with access to the Mortgaged Property.
(Hf) In S▇▇▇▇▇ agrees to reimburse Buyer on demand for actual out of pocket costs and expenses (including, without limitation, the event reasonable fees and expenses of outside counsel) incurred by Buyer elects in connection with its due diligence activities pursuant to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentthis Article 26.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Due Diligence. a. On or before the date which is three (A3) Buyer business days following the Effective Date, Seller shall have furnish to Buyer, for review and reliance as part of Buyer’s due diligence, all documents in Seller’s possession pertaining or relevant to the rightProperty (the “Due Diligence Documents”), after including, without limitation, the Contract Date following: (a) surveys of the Property, if any; (b) environmental assessments pertaining to the Property; (c) geotechnical reports on the Property; (d) roof, structural and upon advance notice building reports pertaining to the Property; (e) Seller’s title policy on the Property and copies of all underlying documents; (f) notices of violations of any zoning ordinance or other law, regulation, agreement or instrument applicable to access the Premises to inspect, investigate Property; (g) architectural and conduct due diligence as to matters engineering plans and specifications relating to the Premises, including but not limited building and other improvements on the Property; (h) all property tax assessment bills for the last 3 years related to the environmental conditions, zoning, governmental approvals, road accessProperty; (i) all service contracts, property taxesmanagement agreements, and other agreements in place regarding the Property; (j) all insurance policies and certificates regarding the Property; (k) a schedule of all capital improvements at the Property for the last three (3) years; and (l) warranties and/or guaranties pertaining to the Property. In the event Seller shall withhold any other conditions Due Diligence Document that is material to the condition, use, ownership or operation of the Property and which was required by Seller to be delivered to Buyer deems necessary; provided that Buyer delivers pursuant to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approvalSection 2(a), Buyer shall have the right thereafterto exercise Buyer’s remedies under Section 11(a) below.
b. From the Effective Date, at its own riskthrough the date of Closing (as defined below), cost Seller shall allow Buyer and expense, to enter, or cause its approved Buyer’s agents and representatives consultants access to enter upon the Premises, upon advance notice to Seller, Property for the purpose of making conducting building inspections, surveys, testsenvironmental assessments, borings, inspections, and other investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical tests and any other study of studies in connection with the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any evaluation of the due diligence materials conditions to this Agreement. Such access shall be exercised by Buyer and any additional environmentalits agents and consultants at reasonable times, and/or other studies, tests, reportswithout material interference with Seller’s ongoing operations at the Property (if any), and other documents generated in shall be exercised with due care and at the due diligence activities or related activities that risk of Buyer, and with general liability insurance as may be conducted by either partycustomary. Any final reportIf Buyer or its agents or consultants shall cause any damage to the Property in connection with such access, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided restore the same to its condition immediately preceding such damage, and in any event Buyer shall indemnify Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure against damage caused by Buyer or its attorneys, lenders, agents or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises consultants in connection with such access; provided, however, that under no circumstances shall Buyer be liable to Seller hereunder as a result of (x) Buyer’s due diligence investigation or Buyer’s agents or consultants mere discovery of hazardous materials or other conditions at the Premises. Buyer further agrees that before it Property or any of its consultants visit (y) the Premises for due diligence purposesfraud, it will obtain and maintain in full force and effect, gross negligence or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent willful misconduct of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇c. ▇▇▇▇▇ Money will be returned (with interest)is performing due diligence of the Property, and both Buyer and Seller shall be relieved of any further obligations under this Agreement; providedaccepts the property in an as-is condition, however, each party shall pay their respective costs and expenses other than as expressly provided for in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. (Aa) Buyer Each Seller Counterparty acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets and Contributed Swingline Loans, the Seller Counterparties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Each Seller Counterparty agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall have the rightbe required), after the Contract Date and upon advance notice to Sellereach Seller Counterparty shall provide (or shall cause any other Seller Party or Servicer, as applicable, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10provide) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide reasonable access to available Purchaser and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposesagents, it will obtain and maintain in full force and effect, representatives or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining permitted assigns to the Propertyoffices of Seller Counterparties, which items, to the extent not already provided to such other Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing Party or any termination of this AgreementServicer, as the case may be, during normal business hours and Buyer permit them to examine, inspect, and make copies and extracts of the Purchased Asset Files, Contributed Swingline Loan Documents, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets and Contributed Swingline Loans in the possession or under the control of such party; provided, that prior to the occurrence and continuance of an Event of Default, notwithstanding anything in this Agreement to the contrary, Purchaser shall provide such consents not contact any Mortgagor or Mezzanine Borrower of an Eligible Asset, any related sponsor or other documentation as obligor, any related tenant or any other loan party with respect to a proposed Transaction, Swingline Transaction or a Purchased Asset, without a Seller shall request so that Seller may do soCounterparty’s prior consent.
(Gb) If Each Seller Counterparty agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 26(a).
(c) Each Seller Counterparty agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the results time of any inspection pursuant to Article 26(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required and there shall be no limitation on frequency), by phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about any of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Sellerforegoing Persons, or an unacceptable environmental concern is revealedany other matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the foregoing, each Seller Counterparty acknowledges that Purchaser may enter into Transactions with Seller Counterparties based solely upon the information provided by the Seller Counterparties to Purchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets and Contributed Swingline Loans. Purchaser may underwrite such Purchased Assets and Eligible Swingline Loans itself or engage a third-party underwriter to perform such underwriting. Each Seller Counterparty agrees to cooperate with Purchaser and any third party underwriter in connection with such underwriting, including, but not limited to, providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets and Contributed Swingline Loans in the possession, or Buyer is unable to secure acceptable financing solely as determined by Buyerunder the control, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; Seller Party or any Affiliate thereof.
(e) Each Seller Counterparty hereby acknowledges and agrees that Purchaser shall have the right to commission and order an Appraisal of any Mortgaged Property at any time and from time to time, provided, however, each party that no Seller Counterparty shall pay their respective be responsible for the costs and expenses as provided incurred by Purchaser in this Agreementobtaining more than one Appraisal of any Mortgaged Property in any twelve (12) month period. Each Seller Counterparty shall cooperate with Purchaser in connection with the commission or order of any Appraisal by Purchaser, and Seller shall use commercially reasonable efforts to cause the applicable Mortgagor or Mezzanine Borrower to cooperate with Purchaser in obtaining any such Appraisal, including, without limitation, by providing Purchaser with access to the Mortgaged Property.
(Hf) In the event Buyer elects Each Seller Counterparty agrees to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition reimburse Purchaser on the Premises and/or adjustment to the purchase price as a result thereof. If demand for any reason and all reasonable out-of-pocket costs and expenses (including, without limitation, the purchase is not subsequently closed, then Buyer shall grant Seller ownership reasonable fees and expenses of the final report counsel) incurred by Buyer’s consultant, Purchaser in connection with Seller having the right its due diligence activities pursuant to utilize the report as if Seller had commissioned the site assessmentthis Article 26.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Due Diligence. (A) Seller acknowledges that Buyer shall have has the rightright to perform continuing due diligence reviews with respect to the Purchased Assets, after for purposes of verifying compliance with the Contract Date representations, warranties and upon advance specifications made hereunder, or determining or re-determining the Asset Base for purposes of Section 4 of this Agreement, or otherwise, and Seller agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on any or all of the Purchased Assets, including, without limitation, ordering new credit reports and Appraisals on the applicable collateral and otherwise regenerating the information used to originate such Purchased Assets. Upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to any Purchased Asset in the Premisespossession or under the control of Seller, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor servicer or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personssub-servicer and/or Custodian. Seller agrees also shall make available to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, a knowledgeable financial or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveysanswering questions respecting the Purchased Asset Files, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical the Servicing Records and any other study of the Premises as Buyer deems necessaryPurchased Assets. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (agrees to cooperate with interest)▇▇▇▇▇ and any third party underwriter designated by Buyer in connection with such underwriting, and both including, but not limited to, providing Buyer and Seller shall be relieved any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of such Seller. ▇▇▇▇▇▇ agrees to reimburse Buyer for any further obligations under this Agreement; providedand all attorneys’ fees, however, each party shall pay their respective costs and expenses as provided incurred by Buyer in this Agreementconnection with continuing due diligence on Eligible Assets and Purchased Assets and Diligence Fees. Diligence Fees applicable to underwriting only shall be subject to an annual, calendar year dollar cap of $30,000.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Ares Commercial Real Estate Corp)
Due Diligence. 3.1 LICENSEE shall use its best efforts to bring one or more LICENSED PRODUCTS or LICENSED PROCESSES to market through a thorough, vigorous, and diligent program for exploitation of the PATENT RIGHTS and to continue active, diligent marketing efforts for one or more LICENSED PRODUCTS or LICENSED PROCESSES throughout the life of this Agreement. In the event that LICENSEE abandons a LICENSED PRODUCT or LICENSED PROCESS by failing to do any research and development, actively pursue any sales, or any further commercialization of the LICENSED PRODUCT or LICENSED PROCESS of a period of one (A1) Buyer year, then that LICENSED PRODUCT or LICENSED PROCESS shall have be considered abandoned and no longer a part of this Agreement. In the rightevent of abandonment of the LICENSED PRODUCT or LICENSED PROCESS, after the Contract Date LICENSED PRODUCT or LICENSED PROCESS reverts to NDSU/RF and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, NDSU/RF may take any action it desires on that LICENSED PRODUCT or LICENSED PROCESS including but not limited to its own research and development and marketing and/or licensing it to another entity.
3.2 LICENSEE recognizes that within the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and TERRITORY it has the name of any consultant, agent, contractor or other who Buyer desires to enter responsibility for developing the Premises market potential for this purpose, with Buyer’s request that access be granted to such person or personsLICENSED PRODUCTS. Seller LICENSEE agrees to use its best efforts efforts, consistent with its reasonable business judgment, to respond develop the full potential for the sale of LICENSED PRODUCTS within the TERRITORY.
3.3 If LICENSEE is not selling one or more LICENSED PRODUCTS in or to any specific country within the TERRITORY that is of interest to NDSU/RF by December 31, 1997 and NDSU/RF then has a genuine interest in developing the market for the LICENSED PRODUCTS in such request from Buyer within ten (10) days of receiptcountry or has a licensing or other business opportunity to do so, and with Seller’s approval, Buyer NDSU/RF shall have the right thereafterto give LICENSEE one hundred twenty (120) days notice
(a) selling products in or to the designated country; or (b) LICENSEE has a business plan to enter the country within one hundred twenty (120) and does so. In the event the TERRITORY is ever reduced in size by excluding certain countries or other geographical areas, LICENSEE shall not thereafter actively solicit orders for sales of LICENSED PRODUCTS in or to areas outside the TERRITORY as reduced.
3.4 In addition, LICENSEE shall adhere to the following milestones:
(a) LICENSEE shall deliver to NDSU/RF on or before December 31, 1996, a status report showing the amount of money, number and kind of personnel, and time budgeted and planned for the development of the LICENSED PRODUCTS and LICENSED PROCESSES and shall provide similar reports to NDSU/RF on or before December 31 of each year.
(b) NDSU/RF may, at its own riskexpense and on reasonable notice, cost visit the relevant offices and expense, facilities of LICENSEE at mutually convenient times to enter, study and otherwise acquire or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementexchange information concerning LICENSED PRODUCTS including improvements.
(Bc) Buyer agrees that they will keep confidential LICENSEE shall use its best effort in developing and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to closeachieving maximum sales.
(C) The confidentiality obligation herein does not apply 3.5 LICENSEE's failure to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies perform in accordance with the terms Article 3.1 and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing 3.4 above shall be grounds for NDSU/RF to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this AgreementAgreement pursuant to Article 13.3 hereof.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: License Agreement (Agsco Inc)
Due Diligence. The Company will make available to each Selling Holder (Aand their counsel) Buyer and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel or auditors and will also make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "INSPECTORS"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "RECORDS") as shall have be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the rightCompany's officers and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; PROVIDED, that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, PROVIDED FURTHER, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Contract Date Company) shall be deemed confidential and shall not be used by it as the - 6 - basis for any market transactions in the securities of the Company or its affiliates (as defined in Rule 405 promulgated under the Securities Act) unless and until such information is made generally available to the public. Each Selling Holder further agrees that it will, upon advance learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to Seller, to access the Premises to inspect, investigate Company and conduct due diligence as to matters relating to allow the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafterCompany, at its own risk, cost and expense, to enter, or cause its approved agents and representatives undertake appropriate action to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study prevent disclosure of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementRecords deemed confidential.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. Each of Seller and Guarantor acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to Seller Parties, the Guarantor, the Servicer, the Purchased Assets, Pledged Assets, Underlying Mortgage Loans subject to any Transaction and Underlying REO Property in connection with any Transaction or otherwise pledged hereunder, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each of Seller and Guarantor agrees that (Aa) Buyer upon reasonable prior notice to Seller unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the rightAsset Files and any and all documents, after records, agreements, instruments or information relating to such Purchased Assets, Pledged Assets, Underlying Mortgage Loans, Underlying REO Properties of the Contract Date and upon advance notice to Seller (the “Due Diligence Documents”) in the possession or under the control of Seller, Guarantor, Servicer and/or the Custodian, or (b) upon request, Seller shall create and deliver to access Buyer within twenty (20) calendar days of such request, an electronic copy on CD or DVD, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the Premises purpose of answering questions respecting the Asset Files, the Purchased Assets, the Pledged Assets, the Underlying REO Property and the Underlying Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Assets from Seller based solely upon the information provided by Seller to inspectBuyer in the Asset Schedule and the representations, investigate warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets, Pledged Assets, Underlying Mortgage Loans subject to a Transaction or Underlying REO Properties pledged in connection with a Transaction, including, without limitation, ordering appraisals or BPOs, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan, performing compliance, legal, credit and servicing file reviews, as well as reviews of claim history and files with FHA, VA and USDA and verification of FHA Mortgage Insurance in place, VA Loan Guaranty Agreement in place and USDA guaranty in place. Buyer may due diligence such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties itself or engage a mutually agreed upon third party due diligence firm to matters relating perform such due diligence, subject to such third party due diligence firm executing the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name standard form of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsnon-disclosure agreement. Seller agrees to use its best efforts to respond to such request from cooperate with Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials firm in connection with such underwriting, including, but not limited to, providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the third party due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided firm with access to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Purchased Assets, demandsPledged Assets, liabilitiesUnderlying Mortgage Loans and Underlying REO Properties in the possession, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever Seller provided, however, that may arise out unless an Event of or result from any claimDefault has occurred and is continuing, suit, act, judgement, demand or which may such on-site visits and/or on-site examinations shall be brought against limited to one (1) per calendar year. Seller relating in any way associated with the conducting of any activity upon the Premises further agrees that Seller shall pay all reasonable third-party out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned ’s activities pursuant to this Section 21 (with interest)“Due Diligence Costs”) in an amount not to exceed the Due Diligence Cap per calendar year; provided that the Due Diligence Cap shall not apply upon the occurrence and continuance of an Event of Default. In addition, the Buyer may perform corporate level due diligence on the Seller and both Buyer and Seller shall be relieved of any further obligations under this Agreement; Servicer, provided, however, each party shall pay their respective costs that prior to the occurrence and expenses as provided in this Agreement.
(H) In continuation of an Event of Default the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer Seller shall not be entitled required to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment pay for such corporate level due diligence more than once per annum (which due diligence shall also be subject to the purchase price as a result thereof. If for any reason Due Diligence Cap; provided that the purchase is Due Diligence Cap shall not subsequently closed, then Buyer shall grant Seller ownership apply upon the occurrence and continuance of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentan Event of Default).
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
Due Diligence. (Aa) Buyer After exercise of the Option, Town, and its employees, agents, contractors, subcontractors, assigns and invitees shall have the rightright to enter upon and examine, after the Contract Date investigate, survey, appraise and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to inspect the Premises, including but not limited to without limitation the performance of a Phase I and/or Phase II environmental testing, and such other environmental testing as Town shall reasonably and in good ▇▇▇▇▇ ▇▇▇▇ necessary or appropriate. Town’s due diligence shall include: (i) assessing environmental conditions, zoning, governmental approvals, road access, property taxes, physical nature and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance condition of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is preparing and making all plans and studies necessary or appropriate for or in Buyer’s possession on connection with the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer application process for all permits from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses governmental bodies necessary or advisable by Town and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyerfor Town’s due diligence investigation proposed use of the Premises. Buyer further agrees that before it or any of Such activities may include, but shall not be limited to, surveying, soil testing, water monitoring and testing and engineering and environmental studies. All such activities shall be reasonably conducted and shall not unreasonably nor materially waste the land. In the event this Option is not exercised by the Town, the Town shall use its consultants visit reasonable efforts to return the Premises for to the condition it was in prior to such due diligence purposesdiligence.
(b) After exercise of the Option, it Golf Club will obtain and maintain in full force and effectmake available to Town, or will cause its consultants to do socopies of Golf Club’s plans, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Sellersurveys, for bodily injury, including death, and property damage in a minimum amount inspections and/or maintenance records of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintainif any, and any environmental data they possess regarding the Premises, including without limitation any environmental studies or reports (“Golf Club’s Information”). If Town has not completed the purchase of the Premises by the Closing Date, Town shall require return Golf Club’s Information and all copies thereof to Golf Club.
(c) After exercise of the Option, the Town shall engage a licensed professional surveyor at its consultants with cost and contractors expense to procure be shared equally by the Town and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated hereinGolf Club to prepare a survey of the Premises, including without limitation, adding Seller a survey necessary for the purposes of establishing a boundary line between the Premises and the adjacent property thereto being retained by the Golf Club, as well as the property adjacent to the Premises and owned by the Abutters, as identified in the Agreement and suitable for use by the Golf Club in any subdivision application required in order for the Premises to be transferred to the Town, such survey to be for the benefit of both the Town and the Golf Club.
(d) Town may conduct an Additional Insured; obtaining waiver appraisal of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , Premises at any time at its risk, sole cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Agreement to Transfer Real Property
Due Diligence. (A) Seller acknowledges that the Buyer shall have Parties has the rightright to perform continuing due diligence reviews with respect to the Purchased Assets, after for purposes of verifying compliance with the Contract Date representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon advance reasonable prior written notice to Seller, the Buyer Agent or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and make copies and extracts of, the Purchased Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of Seller, any other servicer or subservicer and/or the Custodian. Seller also shall make available to the Buyer Agent a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Loan Files and the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that the Buyer Parties may enter into Transactions with Seller based solely upon the information provided by Seller to the Buyer Agent and the representations, warranties and covenants contained herein, and that the Buyer Agent, at its option, has the right at any time to conduct a partial or complete due diligence as review on some or all of the Purchased Assets. A Buyer may underwrite such Purchased Loans itself or engage a third-party underwriter to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to perform such person or personsunderwriting. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer Parties and any third-party underwriter in its dealings connection with governmental agencies during such underwriting, including, but not limited to, providing the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones Buyer Parties and any third-party underwriter with access to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, any and all materials submitted documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or received from any governmental entity or agency under the control, of or pertaining to the Property, which items, to the extent not already provided to Seller. Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as further agrees that Seller shall request so that Seller may do so.
(G) If reimburse the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole Parties for any and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective all out-of-pocket costs and expenses as provided reasonably incurred by the Buyer Parties in this Agreement.
(H) In the event Buyer elects to proceed connection with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled Parties' activities pursuant to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentthis Section 21.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Anthracite Capital Inc)
Due Diligence. (A) Buyer shall have The Originator acknowledges that the rightInitial Noteholder may purchase Notes and advance Borrowings and may enter into transactions based solely upon the information provided by the Originator to the Initial Noteholder in the Loan Schedule and the representations, after warranties and covenants contained herein, and that the Contract Date and upon Initial Noteholder, at its option, has the right prior to such purchase of the Notes or the advance notice of any Borrowing therein or such Transactions to Seller, to access the Premises to inspect, investigate and conduct a partial or complete due diligence as review on some or all of the Transferred Loans securing such purchase, including, without limitation, re-generating the information used to matters relating originate each such Transferred Loan. The Initial Noteholder may underwrite such Transferred Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Originator agrees to cooperate with the PremisesInitial Noteholder and any third party underwriter in connection with such underwriting, including including, but not limited to, providing the Initial Noteholder and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Transferred Loans in the possession, or under the control, of the Servicer. The Originator also shall make available to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor Initial Noteholder a knowledgeable financial or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveysanswering questions respecting the Loan Files and the Transferred Loans. Each Noteholder agrees (on behalf of itself and its Affiliates, testsdirectors, boringsofficers, inspectionsemployees and representatives) to use reasonable precaution to keep confidential, investigationsin accordance with its customary procedures for handling confidential information and in accordance with safe and sound practices, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not to disclose to any third party except its attorneys, lenders, and consultantsparty, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities non-public information supplied to it or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is otherwise obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free it hereunder with respect to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it Originator or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this AgreementAffiliates; provided, however, that nothing herein shall prohibit the disclosure of any such information to the extent required by statute, rule, regulation or judicial process; provided, further that, unless specifically prohibited by applicable law or court order, the Noteholder shall, prior to disclosure thereof, notify the Originator of any request for disclosure of any such non-public information. The Noteholder further agrees not to use any such non-public information for any purpose unrelated to this Agreement and that each such Noteholder shall not disclose such non public information to any third party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects underwriter without obtaining a written agreement from such third party underwriter to proceed comply with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The confidentiality provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if anySection 11.13.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Due Diligence. (A) Buyer shall will have until the rightexpiration of the fifth business day after delivery of each of following items, after the Contract Date and upon advance notice to be supplied by Seller, to access the Premises to inspect, investigate conduct all of its inspections and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and satisfy itself regarding each item, the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receiptProperty, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementtransaction.
(Ba) The original and one copy of a title insurance commitment for an Owner's Title insurance policy (see paragraph 8 below).
(b) Copies of a Certificate of Occupancy or other such document certifying completion and granting permission to permanently occupy the improvements on the Entire Property as are in Seller's possession.
(c) Copies of an "as built" survey of the Property done concurrent with Seller's acquisition of the Property. Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysInitial: /s/ ADM /s/ L.B.M. Purchase Agreement for Tractor Supply - Bristol, lendersVA (d) Lease of the Entire Property showing occupancy date, lease expiration date, rent, and consultantsGuarantys, any if any, accompanied by such tenant financial statements as may have been provided most recently to Seller by the Tenant and/or Guarantors. It is a contingency upon Seller's obligations hereunder that two (2) copies of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated Co-Tenancy Agreement in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period form attached hereto duly executed by Buyer shall be provided to and Seller within a reasonable time period prior to Closing. All due diligence materials shall and dated on escrow closing date be delivered to the Seller immediately on the Closing date. Buyer may cancel this agreement for ANY REASON in its sole discretion by delivering a cancellation notice, return receipt requested, to Seller and escrow holder before the expiration of any review period or inspection period. Such notice shall be deemed effective only upon receipt by Seller. If Buyer cancels this Agreement as permitted under this Section, except for any escrow cancellation fees and any liabilities under sections 15(a) of this agreement (which will survive), Buyer (after execution of such documents reasonably requested by Seller to evidence the termination of the agreement hereof) shall be returned its First Payment, and Buyer will have absolutely no rights, claims or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free interest of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises type in connection with Buyer’s due diligence investigation the Property or this transaction, regardless of the Premisesany alleged conduct by Seller or anyone else. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it irrevocably will obtain be deemed to have canceled this Agreement and maintain relinquish all rights in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the PropertyProperty unless Buyer makes the Second Payment when required. If this Agreement is not canceled and the Second Payment is made when required, which items, to the extent not already provided to Seller at the time all of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by Buyer's conditions and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money contingencies will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreementdeemed satisfied.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Purchase Agreement (Aei Real Estate Fund Xviii Limited Partnership)
Due Diligence. (Aa) Buyer shall have the right, For a period of 45 days after the Contract Effective Date and upon advance notice to Seller, to access of this Agreement (the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”), Buyer and its agents and representatives shall be entitled to conduct an inspection of the Premises, which may include, but shall not be limited to, the rights to (1) unless extended enter on the Premises to perform inspections and tests, including, but not limited to, inspection, evaluation and testing of the heating, ventilation and air-conditioning systems and all components thereof, the roof of the building, the parking lots, all structural and mechanical systems within the building, including, but not limited to, sprinkler systems, power lines and panels and plumbing; and (2) make investigations with regard to zoning, environmental, building code and other legal requirements, including, but not limited to, an environmental assessment. If Buyer, in its sole and absolute discretion, determines that the results of any inspection, test or examination do not meet Buyer’s criteria for purchase or operating of the Premises in the manner contemplated by Buyer, or if Buyer, in its sole discretion, otherwise determines that the Premises is unsatisfactory to it, then Buyer may terminate this Agreement by written agreement notice to Sellers, given not later than the last day of the Due Diligence Period, or Buyer and Seller per section 2A may agree to provide Buyer a credit against the purchase price, provided that any such amendment shall not be valid unless mutually signed prior to the expiration of the Due Diligence Period. If Buyer elects to terminate this agreementAgreement, the ▇▇▇▇▇▇▇ money shall be returned to Buyer and, except as otherwise provided in this Section, neither of the Parties shall have any further liability to the other hereunder. In the event Buyer fails to notify Seller of its intent to terminate this Agreement prior to the expiration of the Due Diligence Period, Buyer’s right to terminate this Agreement shall be waived and become null and void.
(Bb) Buyer agrees that they will keep confidential All inspections, investigations, tests and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period appraisals required by Buyer under this Section shall be at Buyer’s expense unless otherwise expressly provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to closethis Agreement.
(Cc) The confidentiality obligation herein does not apply to Neither Buyer, nor any information that (i) is public knowledge on of its agents or representatives, shall damage the date hereof; (ii) is in Premises or any portion thereof, except for any immaterial damage caused by environmental and other tests, all of which shall promptly be repaired by Buyer at Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by sole cost and expense. Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free agrees to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, indemnify and defend Seller and hold Seller harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilitiesactions, damageslawsuits, expenses damages and costs, (including attorney reasonable attorneys’ fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise arising out of any act or result from any claimomission of Buyer, suitor its agents and/or representatives, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation review. The foregoing obligation shall survive the closing of this transaction and any termination of this Agreement.
(d) The physical condition of the PremisesPremises shall be substantially the same on the date of possession, as it exists as of the Effective Date of this Agreement, reasonable wear and tear excepted. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon inspect the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones 48-hour period immediately prior to monitor Buyer’s progress for submission of required applications during the Permitting Period possession and milestones to monitor the progress of the necessary approvals by the appropriate governmental agenciesclosing.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Sale Agreement
Due Diligence. (A) Buyer shall have the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇▇ Money acknowledges that the Lender, at the expense of the Borrower, has the right to perform and/or appoint a third party to perform, reasonable continuing due diligence reviews with respect to Borrower, any Subservicer, the Servicing Rights, and the other Collateral, for purposes of verifying compliance with the representations, warranties, and specifications made hereunder and under the other Facility Documents, or otherwise. The Borrower agrees that the Lender and its Authorized Representatives will be returned (with interest)permitted during normal business hours upon prior written notice to examine, inspect, make copies of, and both Buyer make extracts of, any and Seller shall be relieved all documents, records, agreements, instruments or information relating to the Collateral or ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, HUD or ▇▇▇▇▇▇ ▇▇▇ in the possession of the Borrower or any further obligations under this AgreementSubservicer; provided, however, each party the foregoing shall pay their respective not apply with respect to any information that the Borrower or any Subservicer is required by ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, HUD, ▇▇▇▇▇▇ ▇▇▇, any Governmental Authority or a Requirement of Law to keep confidential. Notwithstanding anything to the contrary herein, the Borrower shall reimburse the Lender for any and all reasonable and documented out-of-pocket costs and expenses as provided (including without limitation, any reasonable costs and expenses of any Valuation Agent) incurred by the Lender and its respective designees and appointees in this Agreement.
(H) In the event Buyer elects to proceed connection with the purchase ongoing due diligence and auditing activities with respect to Borrower’s origination and servicing business. The Borrower further agrees that the Lender and its Authorized Representatives will be permitted during normal business hours upon three (3) Business Days’ prior written notice at a mutually desirable time or at any time during the continuance of an Event of Default, to examine, copy and make extracts from the Premises with such environmental concern “AS ISServicing Records, WHERE ISany and all documents, WITH ALL FAULTS”records, Buyer agreements, instruments or information relating to the Pledged Servicing Rights and related Loans in the possession of, or under the control of, Borrower or any Subservicer, or ▇▇▇▇▇▇▇▇’s or any Subservicer’s books and records (provided the foregoing shall not be entitled apply with respect to any environmental indemnification regardless information that the Borrower or any Subservicer is required by ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, HUD, ▇▇▇▇▇▇ ▇▇▇, any other Governmental Authority or a Requirement of whether the investigationLaw to keep confidential), studyto inspect any of its Properties, test or report identified or failed and to identify any pre-existing environmental concern or condition on the Premises and/or adjustment discuss its business and affairs with its officers, all to the purchase price as extent reasonably requested by Lender. Borrower agrees to cooperate with ▇▇▇▇▇▇ and any third party due diligence agent or underwriter in connection with any such due diligence performed hereunder, including, but not limited to, providing Lender and any third party diligence agent or underwriter with access to any and all documents, records, agreements, instruments or information relating to the Pledged Servicing Rights, any Subservicer and related Loans in the possession of, or under the control of, Borrower (provided the foregoing shall not apply with respect to any information that the Borrower or any Subservicer is required by ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, HUD, ▇▇▇▇▇▇ ▇▇▇, any other Governmental Authority or a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership Requirement of the final report by Buyer’s consultant, with Seller having the right Law to utilize the report as if Seller had commissioned the site assessmentkeep confidential).
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Loan and Security Agreement (Mr. Cooper Group Inc.)
Due Diligence. Each Seller Party acknowledges that Agent and each Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, Mortgage Loans and Contributed REO Properties, Seller Parties and Servicer, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Purchased Assets, Mortgage Loans and Contributed REO Properties, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller Party agrees that (Aa) Buyer upon reasonable prior notice to such Seller Party, unless an Event of Default shall have the rightoccurred and be continuing, after the Contract Date and upon advance in which case no notice is required, Agent, each Buyer or their respective authorized representatives will be permitted during normal business hours to Sellerexamine, to access the Premises to inspect, investigate and conduct due diligence as to matters make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets, Mortgage Loans and Contributed REO Properties (the Premises, including but not limited to “Due Diligence Documents”) in the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to possession or under the control of Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and and/or the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enterCustodian, or cause its approved agents (b) upon request, Seller Parties shall create and representatives deliver to enter upon the PremisesAgent within [***] of such request, upon advance notice an electronic copy via email to Seller[***], in a format acceptable to Agent, of such Due Diligence Documents as Agent may request. The Seller Parties also shall make available to Agent and Buyers a knowledgeable financial or accounting officer for the purpose of making surveysanswering questions respecting the Asset Files and the Purchased Assets, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical Mortgage Loans and any other study Contributed REO Properties. Without limiting the generality of the Premises as Buyer deems necessary. foregoing, each Seller will provide access Party acknowledges that Agent on behalf of Buyers may purchase Purchased Assets from Seller and enter into additional Transactions with respect to available the Mortgage Loans and relevant documents Contributed REO Properties based solely upon the information provided by Seller to Agent in the Asset Schedule and records. Buyer the representations, warranties and covenants contained herein, and that Agent and/or any Buyer, at its option, has ninety (90) days from the Contract Date right at any time to conduct a partial or complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement review on some or all of the Purchased Assets, Mortgage Loans and Contributed REO Properties purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties with respect to the Mortgage Loans and Contributed REO Properties and otherwise re-generating the information used to originate such Purchased Assets, Mortgage Loans and Contributed REO Properties. Agent and/or Buyers may underwrite such Purchased Assets, Mortgage Loans and Contributed REO Properties themselves or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller per section 2A of this agreement.
(B) Party agrees to cooperate with Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Agent, each Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Mortgage Loans and Contributed REO Properties in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind or nature whatsoever such Seller Party. Seller further agrees that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises shall pay all out-of-pocket costs and expenses incurred by Agent and each Buyer in connection with Agent’s and each Buyer’s activities pursuant to this Section 19. Agent and each Buyer may, based on such due diligence investigation of the Premises. Buyer further agrees that before diligence, require to change contractual terms and add protections it or any of deems, in its consultants visit the Premises for due diligence purposesabsolute discretion, it will obtain and maintain in full force and effect, or will cause necessary to protect its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) rights in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure Mortgage Loans and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of SellerContributed REO Properties.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Finance of America Companies Inc.)
Due Diligence. (Aa) Buyer shall have the rightBorrower acknowledges that, after the Contract Date at reasonable times and upon advance reasonable notice to SellerBorrower, Class A Lender has the right to perform continuing due diligence reviews with respect to the Underlying Loan and the Borrower Parties for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Borrower agrees that no more than twice per calendar year (unless an Event of Default has occurred and is continuing), upon reasonable prior written notice from Class A Lender (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Borrower shall provide (or shall cause any other Borrower Party to provide) reasonable access to Class A Lender and any of its agents, representatives or permitted assigns to the Premises offices of Borrower or such other Borrower Party during normal business hours and permit them to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of the Underlying Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to the Premises, including but not limited to Underlying Loan in the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance possession or under the control of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreementparty.
(Bb) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇▇ Money will agrees that it shall, promptly upon reasonable request of Class A Lender, deliver (or shall cause to be returned delivered) to Lender and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Class A Lender in accordance with Article 26(a).
(with interestc) ▇▇▇▇▇▇▇▇ agrees to make available to Class A Lender and any of its agents, representatives or permitted assigns (i) in person at the time of any inspection pursuant to Article 26(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required and there shall be no limitation on frequency), by phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Borrower, such other Borrower Party for the purpose of answering questions about any of the foregoing Persons, or any other matters relating to the Loan Documents or the Loan that Class A Lender wishes to discuss with such Person.
(d) Without limiting the generality of the foregoing, Borrower acknowledges that Lender may enter into the Loan with Borrower based solely upon the information provided by Borrower to Class A Lender and both Buyer the representations, warranties and Seller shall be relieved of covenants contained herein, and that Class A Lender, at its option, has the right at any further obligations under this Agreementtime to conduct a partial or complete due diligence review on the Underlying Loan. Class A Lender may underwrite the Underlying Loan itself or engage a third-party underwriter to perform such underwriting; provided, however, each that if such underwriting reveals a “Default” and/or “Event of Default” as defined in the Underlying Loan Documents, such “Default” or “Event of Default” will not result in a Default and/or Event of Default hereunder unless the matter revealed is independently a Default and/or Event of Default under the Loan Documents. ▇▇▇▇▇▇▇▇ agrees to reasonably cooperate with Class A Lender and any third party underwriter in connection with such underwriting, including, but not limited to, providing Class A Lender and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to the Underlying Loan in the possession, or under the control, of any Borrower Party or any Affiliate thereof.
(e) Subject to the terms of the Underlying Loan Documents, ▇▇▇▇▇▇▇▇ hereby acknowledges and agrees that Class A Lender shall pay their respective have the right, subject to the terms and conditions of the Underlying Loan Documents, to commission and order an Appraisal of the Underlying Mortgaged Property at any time and from time to time, at Class A Lender’s sole cost and expense. Subject to the terms of the Underlying Loan Documents, (i) Borrower shall reasonably cooperate with Lender in connection with the commission or order of any Appraisal by Class A Lender and, (ii) during any period of time commencing after Class A Lender notifies Borrower in writing that Borrower must comply with this clause (ii), Borrower shall use commercially reasonable efforts to cause the Underlying Mortgagor to cooperate with Class A Lender in obtaining any such Appraisal, including, without limitation, by providing Lender with access to the Underlying Mortgaged Property, subject to the terms of the Underlying Whole Loan Documents.
(f) ▇▇▇▇▇▇▇▇ agrees to reimburse Class A Lender on demand for reasonable and documented out-of-pocket costs and expenses as provided (including, without limitation, the reasonable fees and expenses of outside counsel) incurred by Class A Lender in connection with its due diligence activities pursuant to this AgreementArticle 26.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. (A) A. On or before the Closing Date, Buyer and its agents shall have be afforded access during normal business hours to conduct such inspections of the right, after the Contract Date facilities and property as it deems necessary upon advance reasonable notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to . During such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approvalinspections, Buyer shall have not unreasonably interfere with the right thereafterconduct of Seller’s business upon the Property.
B. On or before the date that is thirty (30) days from the Effective Date (the “Environmental Review Period”), Buyer may, at its own risk, Buyer’s cost and expense, cause a Phase I and/or a Phase II environmental audit to enterbe conducted on the Property (collectively, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises “Audits”) as Buyer deems necessary. Seller will provide access to available and relevant documents and recordsappropriate. Buyer has ninety (90) days will cause copies of all results and reports from the Contract Date to complete their investigation and due diligence Audits (hereinafter collectively, the “Due Diligence PeriodAudit Results”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) to be completed and delivered to Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, Seller. If any of the due diligence materials and any additional environmentalAudit Results disclose conditions or other matters unacceptable to Buyer in its reasonable discretion, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided notify Seller, in writing, of such conditions prior to the expiration of the Environmental Review Period (the “Buyer’s Notice”) and Seller within a shall thereafter have the option to: (i) remedy such unacceptable condition(s), to the reasonable time period satisfaction of Buyer, prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; or, (ii) is terminate this Contract, in which event the Deposit (except for the Independent Consideration, which shall be released to Seller) shall be returned to Buyer and neither party will have any further obligations hereunder except for any obligations that expressly survive. If Buyer does not timely give the Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lendersnotice, or consultants; (iv) is obtained by if Buyer from an independent third party who Buyer reasonably believes after due inquiry is free finds no unacceptable conditions and elects not to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with provide Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposesNotice, it will obtain and maintain then this Contract shall continue in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer effect and Seller shall be relieved of any have no further obligations under this Section 5. To the extent that Buyer raises objections in Buyer’s Notice, Buyer will furnish Seller with concurrent copies of all written correspondence between Buyer and the parties conducting such Audits.
C. During Buyer’s and its agents presence on the Property authorized by this Section 5, it is possible that Buyer or its agents will obtain information or material that is confidential or proprietary to either Seller or Seller’s clients and customers (“Confidential Information”). Buyer will adhere to the confidentiality obligations set forth in this subparagraph 5(C) and will further ensure that any third party it designates to perform all or any part of an Inspection agrees to confidentiality terms no less restrictive. The definition of Confidential Information includes any information obtained by Buyer or Buyer’s agents while on the Property which a reasonable person would understand to be confidential, and shall also include (i) the terms of this Contract (unless such terms have previously been disclosed by Seller), and (ii) information about the condition of the Property. In such case, the party in receipt of such information must maintain the confidentiality of the information notwithstanding anything to the contrary in this Agreement; . Buyer agrees not to disclose Confidential Information without the Seller’s prior written consent and not to use, record or reproduce any Confidential Information other than for the purposes of performing its obligations hereunder. Upon a termination of this Contract for any reason prior to Closing (as defined in Section 8), Buyer shall return to Seller all such Confidential Information obtained by Buyer and Buyer’s agents in connection with this Contract, provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In that the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” subparagraph 5(C) shall survive delivery not apply to (i) information that becomes part of the deed and termination of this Agreement, if any.public
Appears in 1 contract
Sources: Real Estate Sale Contract (American Italian Pasta Co)
Due Diligence. Subject to Section 14(z) and the limitations contained in the Pricing Side Letter and the EPF Pricing Side Letter, (Ai) Buyer Purchasers, Agent, Verification Agent or any of their respective agents, representatives or permitted assigns shall have the right, after the Contract Date upon reasonable prior notice and upon advance notice to Sellerduring normal business hours, to access the Premises to inspect, investigate conduct inspection and conduct perform continuing due diligence as to matters relating to reviews of (x) Seller and its Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of its obligations under the PremisesProgram Documents, including and (y) the Servicing File and the Purchased Assets (including, but not limited to, any documentation related to Seller’s FHA servicing practices) and (ii) Seller agrees promptly to provide Purchasers, Agent, Verification Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the environmental conditionsforegoing in computer data banks and computer software systems) relating to Seller’s respective business, zoningoperations, governmental approvalsservicing, road accessfinancial condition, property taxesperformance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. In addition, Seller shall also make available to Purchasers, Agent and/or Verification Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the purpose of answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Purchasers shall enter into transactions with Seller based solely upon the information provided by Seller to Purchasers and/or Agent and the representations, warranties and covenants contained herein, and that Purchasers, Agent and/or Verification Agent, at its option, shall have the right at any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent time to conduct due itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchasers, Agent and/or Verification Agent shall not reduce or limit the Seller’s representations, warranties and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personscovenants set forth herein. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receiptreimburse Purchasers, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, Agent and/or Verification Agent for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and all reasonable out‑of‑pocket due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in incurred pursuant to this AgreementSection 36.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Nationstar Mortgage Holdings Inc.)
Due Diligence. As soon as reasonably possible, but not later than five (A5) Buyer shall have the right, days after the Contract Date and upon advance notice Effective Date, Lessor shall deliver to SellerLessee the following items related to Property, to access the Premises to inspectextent in Lessor’s possession: (i) engineering or environmental reports; (ii) recorded documents and title polices; (iii) leases, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxeslicenses, and any other conditions that Buyer deems necessaryfacilities use agreements; provided that Buyer delivers to Seller ten and (10iv) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personssurveys. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer Lessee shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety sixty (9060) days from the Contract Effective Date to complete their investigation and due diligence (hereinafter the “Due Diligence Period”) unless extended to obtain any governmental approvals, including zoning relief and to conduct such reasonable tests, studies, and examinations as it may deem necessary or appropriate to utilize the Property for its permitted use and to determine, in its sole and absolute judgment, the acceptability of the Property for lease by written agreement the Lessee (the “Due Diligence”). The Lessee and its contractors shall have the right to enter upon the Property for the purpose of Seller per section 2A of inspecting the Property in accordance with this agreement.
(B) Buyer Paragraph and to perform such reasonable tests and inspections it desires, specifically including, but not limited to, soil borings, and Phase I and Phase II environmental inspections. ▇▇▇▇▇▇ understands and agrees that they will keep confidential all such inspections and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may reviews shall be conducted by either partyin a manner to provide minimum disturbance to the Property. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer Lessee shall be provided to Seller within a provide Lessor with reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free notice of any confidentiality obligation; or (v) is inspections that Lessee wishes to conduct at the subject Property to allow Lessor an opportunity to arrange for a representative of Lessor to be present at any court order or other legally-mandated disclosure.
(D) Buyer such inspection. Lessee shall indemnify, defend, indemnify Lessor and hold Lessor harmless Seller from and against any and all property damageloss or damage caused by any acts of Lessee, personal injuryits employees, and/or death claimscontractors, suitsor any person performing any inspection on behalf of ▇▇▇▇▇▇. Lessor shall reasonably cooperate, demands, liabilities, damages, expenses and without incurring any costs, (including attorney feeswith Lessee in seeking any governmental approvals Lessee determines are needed for its use of the Property, consultant which shall include, but not be limited to, the filing of any applications for zoning relief. All governmental fees and other legal costs)expenses related to any approvals sought by the Lessee shall be paid by ▇▇▇▇▇▇. If, of whatever kind or nature whatsoever after undertaking such efforts, the Lessee, in its sole discretion, determines that may arise out of or result from for any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated reason it shall not proceed with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation lease of the PremisesProperty, the Lessee may, by written notice to the Lessor given not later than the expiration of the Due Diligence Period, notify the Lessor of the Lessee’s inability to satisfy itself with respect to the Property and its election to declare this Lease cancelled and null and void. Buyer further agrees In the event the Lessee does not notify the Lessor that before it or any of its consultants visit the Premises for due diligence purposesLessee has elected to declare this Lease cancelled and null and void in the manner and within the time period set forth in this Paragraph, it will obtain and maintain this Lease shall remain in full force and effect, except that the Lessee’s option to satisfy itself as to the above matters or will cause to declare this Lease cancelled and null and void shall be terminated and be of no force and effect. The earlier of the date upon which the Lessee waives its consultants to do so, Commercial General Liability insurance rights under an occurrence policy form in an insurance company the Due Diligence Period or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit expiration thereof shall be deemed the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “ICommencement Date.” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer Lessee shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the no right to utilize occupy the report as if Seller had commissioned Property until the site assessmentCommencement Date.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Lease Agreement
Due Diligence. (Aa) Buyer shall have the rightSeller acknowledges that Purchaser, after the Contract Date at reasonable times and upon advance reasonable notice to Seller, Purchaser has the right to access the Premises to inspect, investigate and conduct perform continuing due diligence as to matters relating reviews with respect to the Premises, Purchased Assets (including but obtaining updated or new appraisals not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and any other conditions that Buyer deems necessaryis continuing); provided that Buyer delivers to that, unless an appraisal is requested by the Seller, any such appraisal ordered by the Purchaser while no Event of Default is continuing shall be at the Purchaser’s expense, the Seller ten (10) days in advance Parties and Servicer for purposes of entryverifying compliance with the representations, written notice of Buyer’s intent to conduct due diligence warranties and the name of any consultantspecifications made hereunder, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsotherwise. Seller agrees to use its best efforts to respond to such request from Buyer within ten that upon reasonable prior notice (10) days unless an Event of receiptDefault has occurred and is continuing, and with Seller’s approvalin which case no prior notice shall be required), Buyer Seller shall have the right thereafterprovide (or shall cause any other Seller Party or Servicer, at its own risk, cost and expenseas applicable, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide provide) reasonable access to available Purchaser and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit agents, representatives or permitted assigns to the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to offices of Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it such other Seller Party or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this AgreementServicer, as the case may be, during normal business hours and Buyer shall provide permit them to examine, inspect, and make copies and extracts of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such consents Purchased Assets in the possession or other documentation as Seller shall request so that Seller may do sounder the control of such party.
(Gb) If Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the results time of any inspection pursuant to Article 28(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required and there shall be no limitation on frequency), by phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about any of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Sellerforegoing Persons, or an unacceptable environmental concern is revealedany other matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the foregoing, or Buyer is unable Seller acknowledges that Purchaser may enter into Transactions with Seller based solely upon the information provided by Seller to secure acceptable financing solely as determined by BuyerPurchaser and the representations, either Buyer or Seller in their sole warranties and absolute discretion and/or judgment may terminate this Agreementcovenants contained herein, and Buyer’s that Purchaser, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Purchaser may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇▇▇▇ Money will be returned (and any third party underwriter in connection with interest)such underwriting, including, but not limited to, providing Purchaser and both Buyer any third party underwriter with access to any and Seller shall be relieved all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of any further obligations under this Agreement; provided, however, each party shall pay their respective Seller Party or any Affiliate thereof.
(e) ▇▇▇▇▇▇ agrees to reimburse Purchaser on demand for any and all reasonable and documented out-of-pocket costs and expenses as provided (including, without limitation, the reasonable fees and expenses of outside counsel) incurred by Purchaser in connection with its due diligence activities pursuant to this AgreementArticle 28.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. (A) Buyer shall have the rightSeller acknowledges that, after the Contract Date at reasonable times and upon advance reasonable notice, Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to access examine, inspect and make copies and extracts of the Premises to inspectPurchased Asset Files, investigate Servicing Records and conduct due diligence as to matters any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the Premises, including but not limited to possession or under the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name control of any consultantOriginator, agentSeller, contractor any Servicer or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personssubservicer and/or Custodian. Seller agrees also shall make available to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, a knowledgeable financial or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical answering questions respecting the Purchased Asset Files and any other study the Purchased Assets. Without limiting the generality of the Premises as foregoing, Seller acknowledges that Buyer deems necessary. may enter into Transactions with Seller will provide access based solely upon the information provided by Seller to available Buyer and relevant documents the representations, warranties and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenderscovenants contained herein, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its riskoption, cost and expense, has the right at any time to enter conduct a partial or cause its approved agents complete due diligence review on some or all Purchased Assets. Buyer may underwrite such Purchased Assets itself or engage a third-party underwriter to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Periodperform such underwriting. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money agrees to cooperate with ▇▇▇▇▇ and any third-party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third-party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller or any Originator. Seller shall reimburse Buyer for all due diligence costs relating to Buyer’s review of any Purchased Asset (including, without limitation, legal costs, custodial fees and third-party due diligence costs and fees). Buyer in good faith expects that (except with respect to Purchased Assets that are secured by multiple Mortgaged Properties or contain features that require more due diligence than customary, including, without limitation, unique property and/or funding characteristics, including, but not limited to, table fundings, mezzanine debt/preferred equity/co-lending structures, Ground Leases, and condominiums) (a) initial loan-level due diligence costs with respect to any Purchased Asset (other than attorneys’ fees and expenses related to the initial review of the related Purchased Asset Documents) will not be greater than $5,000 and (b) initial loan-level due diligence costs comprised of attorneys’ fees and expenses related to the initial review of the Purchased Asset Documents and insurance review with respect to any Purchased Asset will be returned in an amount equal to approximately $7,50010,000; provided that Seller is at all times obligated to reimburse Buyer for all such costs notwithstanding whether such costs exceed $5,000 or $7,500, as applicable10,000. Seller shall pay for all of Buyer’s costs and expenses incurred in connection with on-site diligence visits; provided that such liability shall be limited to one (with interest)1) visit per year unless an Event of Default or Funding Termination Event has occurred. Unless an Event of Default has occurred and is continuing, and both Buyer and (i) Seller shall be relieved obligated to pay the costs for Appraisals required under Section 12(h)(iv)(A) and (ii) with respect to Appraisals required under Section 12(h)(iv)(B), Seller shall be obligated to pay costs for one (1) Appraisal per Purchased Asset per year if such Appraisal reflects an “as-is” appraised value that is less than the “as-is” appraised value reflected on the previous Appraisal; if such Appraisal reflects an “as-is” appraised value that is equal to or greater than the “as-is” appraised value reflected on the previous Appraisal, Buyer shall be obligated to pay for the costs of such Appraisal. ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇ and any further obligations under this Agreement; provided, however, each party shall Independent Appraiser in connection with obtaining Appraisals. ▇▇▇▇▇▇ agrees to pay their respective all of ▇▇▇▇▇’s costs and expenses as provided incurred in this Agreementconnection with any Future Funding request.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement and Securities Contract (FS Credit Real Estate Income Trust, Inc.)
Due Diligence. Each Seller Party acknowledges that Buyer has the right to perform initial and continuing due diligence reviews with respect to the Purchased Assets, Mezzanine Subsidiary Assets, Seller Parties, Collateral Administrator and other parties which may be involved in or related to Transactions (A) collectively, “Third Party Transaction Parties”), as deemed appropriate by Buyer in its sole discretion, for purposes of verifying compliance with the representations, warranties and specifications made hereunder and obtaining the information set forth in Exhibits M-1 and M-2 hereto, and Seller Parties and Collateral Administrator each agree that upon reasonable prior notice to Seller Parties or Collateral Administrator, as applicable, unless an Event of Default shall have occurred and be continuing, in which case no notice is required, Buyer or its authorized representatives will be permitted at reasonable times to examine, inspect, and make copies and extracts of, the rightAsset Files and any and all documents, after records, agreements, instruments or information relating to such Purchased Assets and Mezzanine Subsidiary Assets in the Contract Date possession or under the control of any Seller Party or Collateral Administrator; provided however, that unless (a) an Event of Default has occurred and is continuing or (b) a Credit Event (and in such case, solely with respect to the Purchased Asset and Mezzanine Subsidiary Assets related to such Credit Event) has occurred and is continuing in the case of this clause (b), for at least thirty (30) days, Buyer does not expect to conduct more than one (1) such review during any one (1) year period. Seller Parties will use commercially reasonable efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Seller Parties and Collateral Administrator shall also make available to Buyer at reasonable times and upon advance reasonable prior notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and the name of any consultant, agent, contractor a knowledgeable financial or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, accounting officer for the purpose of making surveysanswering questions respecting the Asset Files, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical the Purchased Assets and any other study the Mezzanine Subsidiary Assets. Without limiting the generality of the Premises foregoing, each Seller acknowledges that Buyer may purchase Purchased Assets from Sellers based solely upon the information provided by Sellers to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to cause Collateral Administrator or its agent to conduct a partial or complete due diligence review on some or all of the Purchased Assets and Mezzanine Subsidiary Assets purchased in a Transaction, including, without limitation, ordering new Qualified Appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Purchased Asset and Mezzanine Subsidiary Asset and reviewing intercreditor agreements, property management agreements, formation documents of the property owners and their direct and indirect owners, financial statements, environmental and engineering reports, underlying title policies including owner’s and UCC-9 title insurance policies to the extent applicable, legal opinions and other documents as may be mutually agreed among Sellers and Buyer. For the avoidance of doubt, Collateral Administrator’s obligation to provide such due diligence to Buyer deems necessary. Seller will provide access shall not preclude Buyer’s right to available perform due diligence on the Purchased Assets and relevant Mezzanine Subsidiary Assets prior to the Purchase Date and as necessary during the term of the Agreement, as determined by Buyer in is sole discretion, subject to the terms of the Mortgage Loan documents and recordsor Mezzanine Loan documents, as applicable. Buyer has ninety (90) days from the Contract Date may underwrite such Purchased Assets and Mezzanine Subsidiary Assets itself or engage a mutually agreed upon third party underwriter to complete their investigation perform such underwriting. Each Seller and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Collateral Administrator agree to cooperate with Buyer agrees that they will keep confidential and not disclose to any third party except its attorneysunderwriter in connection with such underwriting, lendersincluding, and consultantsbut not limited to, any of the due diligence materials providing Buyer and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free underwriter with access to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damagedocuments, personal injuryrecords, and/or death claimsagreements, suitsinstruments or information relating to such Purchased Assets and Mezzanine Subsidiary Assets in the possession, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs)or under the control, of whatever kind Seller Parties or nature whatsoever Collateral Administrator. Each Seller further agrees that may arise out of or result from any claimit shall pay, suitto the extent Sellers have received an invoice therefor, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises all reasonable and documented out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s due diligence investigation activities pursuant to this Section 17 for one (1) review during any one (1) year period; provided that (i) such limitation shall not apply upon the occurrence and continuance of an Event of Default or the Premises. Buyer further agrees that before it occurrence and continuance of a Credit Event for at least thirty (30) days (and in such case, solely with respect to the Purchased Asset or any Mezzanine Subsidiary Asset related to such Credit Event), (ii) such amounts shall not exceed the Asset Diligence Cap for each Eligible Asset reviewed, unless (x) an Event of its consultants visit Default or (y) a Credit Event (solely with respect to the Premises for due diligence purposes, it will obtain Purchased Asset related to such Credit Event) has occurred and maintain is continuing in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Sellerthe case of this clause (y), for bodily injuryat least thirty (30) days, including deathin which case such Asset Diligence Cap shall not apply, and property damage in a minimum amount of Two million Dollars ($2,000,000.00iii) per occurrence Sellers and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees agree that before it or any of its consultants or contractors visit the Premisesadditional expenses may be incurred for complex transactions, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with notify Sellers before exceeding the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, Asset Diligence Cap and Buyer and Sellers shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory endeavor in good faith to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable agree to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and a revised limitation on diligence expenses as provided in this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentsuch complex transaction.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Ares Commercial Real Estate Corp)
Due Diligence. (A) Buyer shall have The Originator acknowledges that the right, after Administrative Agent and the Contract Date and Lenders may enter into transactions based solely upon advance notice to Seller, to access the Premises to inspect, investigate and conduct due diligence as to matters relating information provided by the Originator to the PremisesAdministrative Agent and the Lenders in the Collateral Schedule and the representations, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxeswarranties and covenants contained herein, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence the Administrative Agent and the name of any consultantLenders, agentat their option, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafterprior to the making of any Credit Extension under the Credit Agreement to conduct a partial or complete due diligence review on some or all of the Collateral securing such purchase, at its own riskincluding ordering new credit reports on the related Mortgaged Properties and otherwise re-generating the information used to originate such Collateral. The Administrative Agent or any Lender may underwrite such Collateral itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Originator agrees to cooperate with the Administrative Agent and any third party underwriter in connection with such underwriting, cost including providing the Administrative Agent and expenseany third party underwriter with access to any and all documents, records, agreements, instruments or information relating to entersuch Collateral in the possession, or cause its approved agents under the control, of the Servicer. The Originator also shall make available to the Administrative Agent and representatives to enter upon the Premises, upon advance notice to Seller, Lenders a knowledgeable financial or accounting officer for the purpose of making surveysanswering questions respecting the Collateral Files and the Collateral. The Administrative Agent and each Lender agrees (on behalf of itself and its Affiliates, testsdirectors, boringsofficers, inspectionsemployees and representatives) to use reasonable precaution to keep confidential, investigationsin accordance with its customary procedures for handling confidential information and in accordance with safe and sound practices, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not to disclose to any third party except its attorneys, lenders, and consultantsparty, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities non-public information supplied to it or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is otherwise obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free it hereunder with respect to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it Originator or any of its consultants visit Affiliates (including the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount Collateral Files); provided that (1) nothing herein shall prohibit the disclosure of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, such information to the extent not already provided required by statute, rule, regulation or judicial process and (2) unless specifically prohibited by applicable law or court order, the Administrative Agent or such Lender shall, prior to Seller at disclosure thereof, notify the time Originator of any termination request for disclosure of this Agreement, are any such non-public information. The Administrative Agent and each Lender further agrees not to be delivered use any such non-public information for any purpose unrelated to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (the Administrative Agent and each Lender agrees that it shall not disclose such non-public information to any third party underwriter in connection with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each a potential Disposition without obtaining a written agreement from such third party shall pay their respective costs and expenses as provided in this Agreement.
(H) In the event Buyer elects underwriter to proceed comply with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The confidentiality provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Due Diligence. Subject to Section 21(z) and the limitations contained in the EPF Pricing Side Letter, (Ai) Buyer Buyer, Verification Agent or any of their respective agents, representatives or permitted assigns shall have the right, after the Contract Date upon reasonable prior notice and upon advance notice to Sellerduring normal business hours, to access the Premises to inspect, investigate conduct inspection and conduct perform continuing due diligence as to matters relating to reviews of (x) Seller and its Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of its obligations under the PremisesProgram Documents, including and (y) the Servicing File and the Underlying Assets (including, but not limited to, any documentation related to Seller’s FHA servicing practices) and (ii) Seller agrees promptly to provide Buyer, Verification Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the environmental conditionsforegoing in computer data banks and computer software systems) relating to Seller’s respective business, zoningoperations, governmental approvalsservicing, road accessfinancial condition, property taxesperformance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Underlying Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. In addition, Seller shall also make available to Buyer and/or Verification Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the purpose of answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Buyer shall enter into transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entryand/or Verification Agent, written notice of Buyer’s intent at its option, shall have the right at any time to conduct due itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Buyer and/or Verification Agent shall not reduce or limit the Seller’s representations, warranties and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personscovenants set forth herein. Seller agrees to use its best efforts to respond to such request from reimburse Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, and/or Verification Agent for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and all reasonable out-of-pocket due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses as provided in incurred pursuant to this AgreementSection 37.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase Agreement (Mr. Cooper Group Inc.)
Due Diligence. (A) Buyer shall have Seller acknowledges that each of the rightAdministrative Agent and the Buyers has the right to perform continuing due diligence reviews with respect to the Purchased Assets, after for purposes of verifying compliance with the Contract Date representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon advance reasonable prior notice to Seller, Administrative Agent or its authorized representatives will be permitted during normal business hours to access the Premises to examine, inspect, investigate and conduct due diligence as to matters make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the Premisespossession or under the control of Seller, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, Primary Servicer and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct due diligence and servicer or sub-servicer and/or the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or personsCustodian. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), agrees to reimburse Administrative Agent for any and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective all reasonable out-of-pocket costs and expenses as provided in this Agreement.
incurred by Administrative Agent with respect to continuing due diligence on the Purchased Assets, which shall be paid by Seller to Administrative Agent within thirty (H30) In calendar days after receipt of an invoice therefor. Seller also shall make available to Administrative Agent a knowledgeable financial or accounting officer for the event Buyer elects to proceed with purpose of answering questions respecting the purchase Purchased Asset Files and the Purchased Assets. Without limiting the generality of the Premises foregoing, Seller acknowledges that Administrative Agent may enter into Transactions with Seller based solely upon the information provided by Seller to Administrative Agent and the representations, warranties and covenants contained herein, and that Administrative Agent, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Administrative Agent may underwrite such Purchased Assets itself or engage a third party underwriter to perform such underwriting. ▇▇▇▇▇▇ agrees to cooperate with Administrative Agent and any third party underwriter in connection with such environmental concern “AS ISunderwriting, WHERE ISincluding, WITH ALL FAULTS”but not limited to, Buyer shall not be entitled providing Administrative Agent and any third party underwriter with access to any environmental indemnification regardless and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereofSeller. If Seller further agrees that Seller shall reimburse Administrative Agent for any reason the purchase is not subsequently closedand all reasonable attorneys’ fees, then Buyer shall grant Seller ownership of the final report costs and expenses incurred by Buyer’s consultant, Administrative Agent in connection with Seller having the right to utilize the report as if Seller had commissioned the site assessmentcontinuing due diligence on Eligible Assets and Purchased Assets.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Starwood Credit Real Estate Income Trust)
Due Diligence. (A) Buyer shall have It is acknowledged by both parties that as at the right, after Effective Date the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and conduct Supplier has conducted due diligence as to matters relating a desk-based exercise and has not had full access to the PremisesSite which, including but not limited to as at the environmental conditionsEffective Date, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent is undergoing fit-out. The Supplier shall therefore have the opportunity to conduct any necessary due diligence and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafterdiligence, at its own risk, cost and expense, during the period from the Effective Date up to enter31 May 2019 (the “Due Diligence Long-stop Date”). In the event that the fit-out of the Site has not achieved practical completion by such date then the parties shall enter into good faith negotiations concerning an appropriate extension to the Due Diligence Long-stop Date. The Supplier’s undertaking of such due diligence shall be without prejudice to its obligation to perform the Mobilisation Services pursuant to the Mobilisation Requirements and by the Milestone Dates or as otherwise provided in this Agreement. On or before the Due Diligence Long-stop Date, the Supplier shall provide a written report to DCC with its due diligence findings and the parties shall act in good faith and use their reasonable endeavours to negotiate any necessary Changes within the general scope of the Services, at all times adhering to the charging principles and assumptions set out within Schedule 2 (Financials) and the Change Control Procedure, and such Changes shall be limited to any increase or cause its approved agents decrease in the volume of Services to be provided by the Supplier under this Agreement. Any Changes directly arising from the same shall be limited to the Charges and representatives the Asset Register (the “True-up Exercise”), with such Changes to enter be agreed and documented following the Change Control Procedure by no later than 15 July 2019 (the “True-up Completion Date”). Items of tangible or intangible property listed in the Mobilisation Requirements or which are otherwise purchased as a result of the True-up Exercise shall be DCC Assets (with title transferring to DCC upon delivery at Brabazon House) and shall be identified as such in the PremisesAsset Register (the “Start-up Assets”). Save for being permitted a reasonable inspection of the Site following practical completion of fit-out for the purposes of the True-up Exercise, upon advance notice the Supplier acknowledges and confirms that as of the Effective Date:-
5.4.1 it has had an opportunity to Seller, carry out a thorough due diligence exercise in relation to the Services and has asked DCC all the questions it considers to be relevant for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of establishing whether it is able to provide the Premises as Buyer deems necessary. Seller will provide access to available and relevant documents and records. Buyer has ninety (90) days from the Contract Date to complete their investigation and due diligence (hereinafter “Due Diligence Period”) unless extended by written agreement of Seller per section 2A of this agreement.
(B) Buyer agrees that they will keep confidential and not disclose to any third party except its attorneys, lenders, and consultants, any of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to close.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies Services in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing this Agreement;
5.4.2 it has received all information requested by it from DCC to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees enable it to immediately determine whether it is able to provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises Services in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination terms of this Agreement, are ;
5.4.3 it has made and shall make its own enquiries to be delivered satisfy itself as to Seller within twenty-one (21) days after such termination. Such items may be retained the accuracy and adequacy of any information supplied to it by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results on behalf of the BuyerDCC;
5.4.4 it has raised all relevant due diligence questions with the DCC before the Effective Date; and
5.4.5 it has entered into this Agreement in reliance on its own due diligence. Further to clause 5.4, the True-up Exercise and Change agreed pursuant to 5.2 shall represent the Supplier’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is sole remedy in respect of due diligence which the Supplier has been unable to secure acceptable financing solely as determined perform by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s ▇▇▇▇▇▇▇ Money will be returned (with interest), and both Buyer and Seller shall be relieved of any further obligations under this Agreement; provided, however, each party shall pay their respective costs and expenses the Effective Date. Save as provided in this Agreement.
(H) In , no representations, warranties or conditions are given or assumed by DCC in respect of any information which is provided to the event Buyer elects Supplier by DCC and any such representations, warranties or conditions are excluded, save to proceed with the purchase extent that such exclusion is prohibited by law. The Supplier shall promptly notify the DCC in writing if it becomes aware during the performance of this Agreement of any inaccuracies in any information provided to it by the Premises with DCC during such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer due diligence which materially and adversely affects its ability to perform the Services or meet any Service Levels and KPIs. The Supplier shall not be entitled to recover any environmental indemnification regardless additional costs from the DCC which arise from, or be relieved from any of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price its obligations as a result thereofof, any matters or inaccuracies notified to DCC by the Supplier in accordance with clause 5.7. If for any reason Nothing in this clause 5 shall limit or exclude the purchase is not subsequently closed, then Buyer shall grant Seller ownership liability of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessmentDCC for fraud or fraudulent misrepresentation.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Supplier Agreement
Due Diligence. (A) Buyer 14.1 IRC shall have a period of 60 days from the right, after the Contract Date and upon advance notice to Seller, to access the Premises to inspect, investigate and date of this Agreement during which it may conduct such due diligence as is usual in transactions of like nature, including without limitation as to matters relating title and tax, during which time period Verbiski will cooperate and respond to the Premises, including but not limited to the environmental conditions, zoning, governmental approvals, road access, property taxes, and any other conditions that Buyer deems necessary; provided that Buyer delivers to Seller ten (10) days in advance of entry, written notice of Buyer’s intent to conduct reasonable due diligence inquiries of IRC in a timely manner and the name of any consultant, agent, contractor or other who Buyer desires to enter the Premises for this purpose, with Buyer’s request that access be granted to such person or persons. Seller agrees to use its best efforts to respond to such request from Buyer within ten (10) days of receipt, and with Seller’s approval, Buyer shall have the right thereafter, at its own risk, cost and expense, to enter, or cause its approved agents and representatives to enter upon the Premises, upon advance notice to Seller, for the purpose of making surveys, tests, borings, inspections, investigations, or conducting any architectural, engineering, structural, economic, environmental, mechanical and any other study of the Premises as Buyer deems necessary. Seller will provide access to available the books, records, properties and relevant documents personnel of Verbiski, Archean, VBHC and recordsLNRLP. Buyer In the event that IRC has ninety (90) days from not provided Verbiski with notice in writing on or before the Contract Date to complete their investigation and 60th day next following the date of this Agreement that it is not satisfied with its due diligence (hereinafter “Due Diligence Period”investigations, the condition for the benefit of IRC contained in paragraph 3.1(e) unless extended by written agreement shall be deemed to be satisfied. Any such notice shall contain details of Seller per section 2A of this agreementthe relevant due diligence issues.
(B) Buyer agrees 14.2 IRC acknowledges that they will keep confidential it has reviewed that agreement known as the Labrador Option Agreement and not disclose has made an independent assessment as to any third party except its attorneys, lenders, and consultants, any the value of the due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or related activities that may be conducted by either party. Any final report, analytical data, survey, and/or drawing generated during the due diligence period by Buyer shall be provided to Seller within a reasonable time period prior to Closing. All due diligence materials shall be delivered to Seller immediately upon the termination of the agreement or in the event the transaction contemplated by the parties fails to closeRoyalty.
(C) The confidentiality obligation herein does not apply to any information that (i) is public knowledge on the date hereof; (ii) is in Buyer’s possession on the date hereof; (iii) becomes public after the date hereof other than due disclosure by Buyer or its attorneys, lenders, or consultants; (iv) is obtained by Buyer from an independent third party who Buyer reasonably believes after due inquiry is free to deliver such material free of any confidentiality obligation; or (v) is the subject of any court order or other legally-mandated disclosure.
(D) Buyer shall indemnify, defend, and hold harmless Seller from and against any and all property damage, personal injury, and/or death claims, suits, demands, liabilities, damages, expenses and costs, (including attorney fees, consultant fees and other legal costs), of whatever kind or nature whatsoever that may arise out of or result from any claim, suit, act, judgement, demand or which may be brought against Seller relating in any way associated with the conducting of any activity upon the Premises in connection with Buyer’s due diligence investigation of the Premises. Buyer further agrees that before it or any of its consultants visit the Premises for due diligence purposes, it will obtain and maintain in full force and effect, or will cause its consultants to do so, Commercial General Liability insurance under an occurrence policy form in an insurance company or companies satisfactory to Seller, for bodily injury, including death, and property damage in a minimum amount of Two million Dollars ($2,000,000.00) per occurrence and Four million Dollars ($4,000,000.00) in the aggregate. Buyer further agrees that before it or any of its consultants or contractors visit the Premises, Buyer shall procure and maintain, and shall require its consultants and contractors to procure and maintain insurance policies in accordance with the terms and provisions outlined in Exhibit “I” attached hereto and incorporated herein, including without limitation, adding Seller as an Additional Insured; obtaining waiver of subrogation; agreeing to give Seller sixty (60) days’ prior written notice upon policy cancellation or change; and providing subcontractor coverage (if applicable). Buyer further agrees to immediately provide a copy of Exhibit “I” to its insurance company and/or insurance agent. Upon Seller’s consent, Buyer shall have the right , at its risk, cost and expense, to enter or cause its approved agents to enter upon the Premises in accordance with the consent of Seller.
(E) Seller shall cooperate with the Buyer in its dealings with governmental agencies during the Permitting Period. This Agreement of Sale shall include mutually agreed upon milestones to monitor Buyer’s progress for submission of required applications during the Permitting Period and milestones to monitor the progress of the necessary approvals by the appropriate governmental agencies.
(F) Buyer shall provide to Seller copies of all engineering plans, surveys, environmental site assessments, traffic generation reports, and all materials submitted to or received from any governmental entity or agency of or pertaining to the Property, which items, to the extent not already provided to Seller at the time of any termination of this Agreement, are to be delivered to Seller within twenty-one (21) days after such termination. Such items may be retained by and used by Seller after Closing or any termination of this Agreement, as the case may be, and Buyer shall provide such consents or other documentation as Seller shall request so that Seller may do so.
(G) If the results of the Buyer’s investigation, study, test or report are not satisfactory to Buyer or Seller, or an unacceptable environmental concern is revealed, or Buyer is unable to secure acceptable financing solely as determined by Buyer, either Buyer or Seller in their sole and absolute discretion and/or judgment may terminate this Agreement, and Buyer’s 14.3 ▇▇▇▇▇▇▇▇ Money shall have a period of 60 days from the date of this Agreement during which period he may conduct such due diligence respecting IRC as he may reasonably require, including without limitation as to tax, the capital structure and assets and the Initial Public Offering of IRC, including those matters set forth in Schedule “A” hereto, and during which time IRC will cooperate and respond to the reasonable due diligence enquiries of Verbiski and his representatives in a timely manner, and provide access to the books, records, agreements, properties and personnel of IRC. IRC shall also ensure that Verbiski has full and reasonable access to the underwriters and agents respecting IRC’s Initial Public Offering, and shall provide Verbiski with IRC’s draft prospectus for the Initial Public Offering and such other documentation as may be returned (reasonably necessary for Verbiski to fully assess the proposed Initial Public Offering. In the event that ▇▇▇▇▇▇▇▇ has not provided IRC with interestnotice in writing on or before the 60th day next following the date of this Agreement that he is not satisfied with his due diligence investigations, the condition for the benefit of Verbiski contained in paragraph 3.1(e), and both Buyer and Seller but for greater certainty not the condition for the benefit of Verbiski contained in paragraph 3.1(d), shall be relieved deemed to be satisfied. Any such notice shall contain details of any further obligations under this Agreement; providedthe relevant due diligence issues. For greater certainty, however▇▇▇▇▇▇▇▇ shall be entitled to object and give notice hereunder in the event that (a) his expectation as to the particulars of IRC and the Initial Public Offering, each party including as to the assets acquired by IRC and the matters set out in Schedule “A” hereto, are not met to his reasonable satisfaction or (b) he is not satisfied on Closing that IRC’s Initial Public Offering shall pay their respective costs have those attributes disclosed during his due diligence investigations. In the event that matters of objection and expenses as provided in notice hereunder are not met to ▇▇▇▇▇▇▇▇’s reasonable satisfaction, Verbiski shall be entitled to terminate this Agreement.
(H) In the event Buyer elects to proceed with the purchase of the Premises with such environmental concern “AS IS, WHERE IS, WITH ALL FAULTS”, Buyer shall not be entitled to any environmental indemnification regardless of whether the investigation, study, test or report identified or failed to identify any pre-existing environmental concern or condition on the Premises and/or adjustment to the purchase price as a result thereof. If for any reason the purchase is not subsequently closed, then Buyer shall grant Seller ownership of the final report by Buyer’s consultant, with Seller having the right to utilize the report as if Seller had commissioned the site assessment.
(I) The provisions of this Section, its subparts, and Exhibit “I” shall survive delivery of the deed and termination of this Agreement, if any.
Appears in 1 contract
Sources: Share Purchase Agreement (International Royalty Corp)