Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2. (a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence. (b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations. (c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein. (d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld. (e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination. (f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller. (g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements. (h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Taubman Realty Group LTD Partnership), Purchase and Sale Agreement (Taubman Centers Inc), Purchase and Sale Agreement (Taubman Realty Group LTD Partnership)
Due Diligence. Purchaser (a) For the period commencing on the date of this Agreement and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before expiring on the Closing Date (the “Due Diligence Period”), Buyer shall have the right to examinedetermine, in Buyer’s sole and absolute discretion, whether the Buyer’s proposed purchase and use of the Property is economically and otherwise feasible. During such time, Buyer shall be entitled to: (i) examine title to the Property, (ii) physically inspect and investigate the Property, which investigation shall be of such scope as Buyer shall determine, (iii) conduct such testing of the Property as well as all records Buyer shall deem reasonably necessary in its sole discretion, including without limitation, one or more environmental audits, and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(aiv) Purchaser shall have seek local zoning approval for a right to enter upon the Property utility scale solar photovoltaic power array for the purpose generation of conducting its Due Diligence provided that in each such instance electric power, together with associated electrical balance of plant equipment, on the Land (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence“Intended Use.”)
(b) Purchaser Buyer shall have through the last day conduct all such inspections, surveying, and other testing of the Property in a good and workmanlike manner. Buyer shall, at Buyer’s expense, promptly repair any damage to the Property directly caused by Xxxxx’s or Buyer's contractor's entry and on-site inspections.
(c) Seller shall in good faith cooperate with Buyer in facilitating Buyer’s investigation of the Property. Seller shall provide Buyer and its agents, employees or consultants with reasonable access to the Property to inspect each and every part thereof and allow Buyer and its agents or consultants to contact all parties which currently contract with Seller with respect to the Property. In addition, Seller shall deliver or make available to Buyer as soon as is practicable and not later than ten (10) business days after the date hereof with respect to the Property all of the following (the “Due Diligence Period Items”):
(i) true and complete copies of any notices of any statute or code violation pertaining to the Property, or written notification that no such violation is applicable;
(ii) all “Phase I” and other environmental assessment reports for the Property in which Seller’s possession (or in the possession of Seller’s attorney, environmental consultant or other agent), or written notification that no such reports are applicable;
(iii) true and complete copies of the following: any leases encumbering the Property; any and all contracts or other documents in Seller’s possession relating to conduct its Due Diligence the Property; any construction and development contracts; certificates of occupancy and/or compliance; third-party inspection reports; plans and specifications for the Improvements; and
(iv) a true and complete copy of Seller’s most recent survey, title insurance policy and attorney’s title opinion relating to the Property.
(d) If Buyer determines, in Purchaser's its sole discretion, to determine whether that the Property is acceptable unsuitable for the Intended Use or that Buyer’s proposed acquisition and operation of the Property is not economical or otherwise feasible, then Buyer shall have the right to Purchaserterminate this Agreement by delivery of written notice to Seller (a “Termination Notice”) at Seller’s address set forth herein prior to the expiration of Due Diligence Period. If Upon Buyer’s delivery of a Termination Notice to Seller as provided above, this Agreement shall immediately terminate and be rendered null and void, which shall be a Permitted Termination as provided herein.
(e) On each annual anniversary of the Effective Date during the Due Diligence Period, Purchaser becomes aware of any problem or defect Buyer must provide Seller with an update on Buyer’s due diligence activities in writing and pay Seller a due diligence extension fee equal to (the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the “Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations"Extension Fee”).
Appears in 3 contracts
Samples: Real Estate Purchase and Sale Agreement, Ground Lease Agreement, Purchase Agreement
Due Diligence. (a) Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals not to exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and is continuing), the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller or such other Seller Party, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party to make available) to Purchaser shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days 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 or such other Seller Party, as the case may be, for the purpose of answering questions about any of the foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to cooperate with Purchaser and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders reimburse Purchaser within ten (the "Indemnified Parties"10) harmless from and against Business Days after demand for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 2 contracts
Samples: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Due Diligence. 5.1.1 Purchaser acknowledges that Purchaser has completed such inspections and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate investigations of the Property as well as all records Purchaser deems desirable to evaluate the financial and other documentation provided by Seller or located at physical condition of the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2such other matters that Purchaser may deem relevant and hereby waives any further due diligence period.
(a) 5.1.2 Prior to Closing, Purchaser and Purchaser’s agents and contractors shall have a the right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) during regular business hours and upon reasonable prior notice to Seller. Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Purchaser’s agents and contractors may at Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, ’s option be accompanied by a representative of Seller shall be present during any such entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against agrees that all inspections of the Property as shall be subject to the rights or security requirements of tenants under Leases, and shall be conducted in a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which manner not unreasonably disruptive to conduct its Due Diligence andtenants, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem guests or defect in invitees at the Property or any other aspect otherwise to the operation of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence PeriodProperty. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, interview the tenant under any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the PropertyLease, provided, however, that Purchaser is not permitted shall first deliver written notice thereof to perform Seller, and at Seller’s option a representative of Seller shall participate in any intrusive testing (except for limited asbestos sampling such interviews. In the event Purchaser desires to conduct any physically invasive due diligence, Purchaser shall provide Seller with the scope of the work to be done as part and the name of Purchaser's Phase I site assessment)the contractor to conduct such work, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the shall request Seller’s prior written consent of Sellerthereto, which consent shall not be unreasonably withheld.
(e) . Prior to entry onto the Property, Purchaser agrees shall provide Seller with a certificate of insurance evidencing that Purchaser maintains a commercial general liability policy that names Seller as an additional insured, in such amounts and covenants with from such insurers as Seller shall approve, such approval not to disclose be unreasonably withheld. Purchaser shall (i) restore the Property, at its own expense, to substantially the same condition which existed prior to any third party inspections or other activities of Purchaser thereon; and (other than lendersii) be responsible for and pay any and all liens by contractors, accountantssubcontractors, attorneys and other professionals and consultants in connection with materialmen, or laborers performing the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports inspections or any other documentation work for Purchaser, its agents or information obtained by Purchaser which relates contractors on or related to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated herebyProperty. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to and hereby does indemnify, defend and hold harmless Seller and its affiliates, members, partners, trustees, beneficiaries, shareholders, membersofficers, managersdirectors, advisors and other agents and their respective employees, officersagents, directors representatives, licensees, and shareholders (the "Indemnified Parties") successors of any of the foregoing, harmless from and against any and all claimsdamages including mechanic’s and materialmen’s liens, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred caused by any of the Indemnified Parties as a result of any activities of entry by Purchaser (including activities of and/or any of Purchaser's employees, consultants, ’s agents or contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that onto the Property is disturbed or altered in any way as a result of such activitiespursuant to this Section 5.1.2, provided that Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from be so liable for the mere discovery by Purchaser or its agents or contractors of information on or a any existing condition at the Property. FurthermorePurchaser’s obligations pursuant to this Section 5.1 shall survive the Closing (without limitation as to time) or earlier termination of this Agreement.
5.1.3 Seller has made available to Purchaser for inspection and copying or delivered to Purchaser such documents, Purchaser agrees to maintain materials and information concerning the Property as Seller may have in effect workers' compensation insuranceits possession or under its control, with statutory limits of coverage, and commercial general liability insurance with excluding only (i) all risk coveragematerials that Seller shall have obtained or developed in connection with the potential sale of the Property, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver materials that are subject to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above)attorney-client privilege, (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMCinternal communications, and (iv) management agreementsinternal projections, forecasts, valuations, budgets and analyses.
5.1.4 Purchaser shall, at no cost to Seller (h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing but without representation or termination warranty of this Agreement shall survive Closing or any kind), furnish to Seller copies of any third-party reports received by Purchaser relating to any inspections of the Property conducted on Purchaser’s behalf. Upon any termination of this Agreement (collectivelyother than a termination resulting from a default by Seller), Purchaser shall (i) assign all of its right, title and interest in any such third party reports to Seller (without representation or warranty of any kind) and (ii) return all documents, materials and information (and all copies thereof) concerning the "Surviving Obligations")Property that Seller has provided to Purchaser. Purchaser’s obligation in this Section 5.1.4 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale (Bureau of National Affairs Inc), Agreement of Purchase and Sale (Bureau of National Affairs Inc)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examinePurchaser, inspect and investigate the Property as well as all records and other documentation provided by Seller Agent or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its their respective agents, representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser permitted assigns shall have the right right, upon reasonable prior notice and during normal business hours, subject to conductSection 10(k), at its sole cost no more than one time during any 12-month period (unless a Servicer Termination Event has occurred and expenseis continuing, in which case the foregoing limitation of one examination during any inspections12-month period shall not be applicable), studies or tests that Purchaser deems appropriate in determining the condition to conduct on-site inspection and perform continuing on-site due diligence reviews of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)x) Seller, including, without limitation, a Phase II environmental assessment or boringfor the purpose of verifying compliance with the representations, without warranties and covenants made under the Program Documents, (iy) submitting to Seller the scope and inspections for such testing; Servicing File and (iiz) obtaining the prior written consent of SellerRelated Mortgage Loans. Seller agrees promptly to provide Purchaser, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents Agent and their respective employeesagents with access to, officers, directors copies of and shareholders (the "Indemnified Parties") harmless extracts from and against any and all claimsdocuments, lossesrecords, damagesagreements, costs and expense instruments or information (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agentsforegoing in computer data banks and computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the PropertyProgram Documents, includingthe documents contained in the Servicing Files or the Related Mortgage Loans or assets proposed to be sold hereunder in the possession, without limitationor under the control, mechanics' liensof Seller. In addition, damage 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 12-month period (unless a Servicer Termination Event has occurred and is continuing, in which case the Propertyforegoing limitation of one examination during any 12-month period shall not be applicable), injury 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 persons or property resulting from such activitiesPurchaser and/or Agent and the representations, warranties and covenants contained herein, and in that Purchaser and/or Agent, at its option, shall have the event that right at any time to conduct itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the Property is disturbed individual Related Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser and/or Agent shall not reduce or altered in any way as a result of such activitieslimit the Seller’s representations, warranties and covenants set forth herein. Seller agrees to reimburse Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, and/or Agent for all reasonable out-of-pocket due diligence costs and expenses incurred with one examination during any 12-month period (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with any additional examinations conducted following the transaction contemplated by occurrence and continuation of Servicer Termination Event) shall not be applicable) pursuant to this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsSection 26.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 2 contracts
Samples: Mortgage Loan Participation Purchase and Sale Agreement (loanDepot, Inc.), Mortgage Loan Participation Purchase and Sale Agreement (loanDepot, Inc.)
Due Diligence. Purchaser shall have completed its due diligence investigation of the Purchased Assets and its representatives shall not have discovered any fact, circumstance, transaction or event of which Purchaser did not have notice as of the date hereof and that constitutes a material breach of the representations and warranties of Sellers set forth herein; provided, however, that Purchaser shall not be permitted entitled to enter upon rely on the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations condition set forth in this Section 3.2.
(a9.3(f) Purchaser shall have a right to enter upon at any time after the Property for the purpose earlier of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property on which Purchaser determines makes the Property unsuitable to Purchasercompletes such investigation and April 1, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, 2005; provided, however, Purchaser is that the foregoing limitations shall not permitted apply to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without the extent that (i) submitting to Seller the scope and inspections for such testing; Sellers have not complied with their obligations under Section 6.1 hereof and (ii) obtaining the Purchaser has provided Sellers with prior written consent notice of, and a reasonable opportunity to cure, such non-compliance. For purposes of Sellerthe preceding sentence “material breach” shall mean facts, circumstances, transactions or events which consent shall not alone or in the aggregate would, or would reasonably be unreasonably withheld.
expect to equal or exceed One Million and No/100 (e$1,000,000) Dollars. Sellers agree to fully cooperate with Purchaser agrees and covenants with Seller not to disclose to any third party (other than lendersprovide, accountantsin a timely manner, attorneys all documents and other professionals and consultants information requested in connection with respect of Purchaser’s due diligence investigation of the transaction contemplated herein) Purchased Assets. If prior to Closing without Seller's prior Closing, Purchaser delivers written consentnotice to Sellers claiming that Sellers have failed to cooperate with Purchaser, unless (which notice shall set forth in detail the claimed failure to cooperate), and if Sellers shall fail or refuse to cure such claim within five (5) Business Days of receipt of such notice, then Purchaser is obligated by New York Stock Exchanges rules or regulations or by law may deliver a second written notice to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that Sellers terminating this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any effective upon delivery of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activitiessaid second notice, and in the event that the Property is disturbed or altered in any way as a result of such activitiesthereupon, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review obligation or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with liability under this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").for said termination;
Appears in 2 contracts
Samples: Asset Purchase Agreement (Titan International Inc), Asset Purchase Agreement (Titan International Inc)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and (a) Purchaser, from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's electionClosing, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost inspect and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition investigate each and every aspect of the Property, providedperform surveys, howeverdig test holes, make engineering studies, environmental studies and perform whatever other tests and evaluations of the Property as Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part may elect, all either independently or through agents, representatives or contractors of Purchaser's Phase I site assessment), including’s choosing. Such investigation by Purchaser may include, without limitation, a Phase II environmental assessment or boring, without : (i) submitting matters relating to Seller governmental and other legal requirements with respect to the scope Property, including without limitation taxes, assessments, zoning, use permit requirements and inspections for such testingbuilding codes; and (ii) obtaining the prior written consent of Sellercompliance with zoning, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lendersland use, accountantsbuilding, attorneys environmental and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consentstatutes, unless Purchaser is obligated by New York Stock Exchanges rules rules, or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates applicable to the Property or Seller in any way, all Property; (iii) the physical condition of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liensthe interior, damage the exterior, the square footage of the improvements and of each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical and functional aspects of the Property; and (iv) all matters relating to the income and operating or capital expenses of the Property and all related financial matters. The GMH Sellers shall freely cooperate with Purchaser’s due diligence of the Property, and shall provide Purchaser with all documents, files and data requested by Purchaser relating to the Property.
(b) In connection with any entry by Purchaser or any of its agents, injury to persons employees or property resulting from such activities, and in contractors onto the event that the Property is disturbed or altered in any way as a result of such activitiesProperty, Purchaser shall promptly restore give the GMH Sellers reasonable advance notice of such entry and shall conduct such entry and any inspections so as to reasonably minimize interference with Tenants. Purchaser shall maintain, or shall cause its contractors to maintain, public liability and property damage insurance insuring Purchaser against any liability arising out of any entry or inspections of the Property to its condition existing prior pursuant to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damageprovisions hereof. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties be in the minimum amount of Florida Ltd. as additional insureds$1,000,000 combined single limit for injury to or death of one or more persons in an occurrence. Purchaser shall deliver indemnify and hold the Partnership, the Whitehall Sellers and the GMH Sellers harmless from and against any Claims arising out of or relating to Seller a copy any entry on the Property by Purchaser in the course of the certificate of insurance effectuating the insurance required hereunder performing any inspections, testings or inquiries.
(c) At any time prior to the commencement thirtieth (30th) day following the Effective Date (such period, the “Due Diligence Period”), Purchaser may, in its sole and absolute discretion, and for any or no reason whatsoever, terminate this Agreement by written notice to the Whitehall Sellers and the GMH Sellers, whereupon the Deposit shall be returned to Purchaser on the first business day following such termination, by wire transfer (pursuant to Purchaser’s wiring instructions) of immediately available funds. The foregoing termination rights have been granted to Purchaser in consideration of the payment of Ten Dollars ($10.00) and other independent, valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Whitehall Sellers and the GMH Sellers.
(d) Notwithstanding any provision in this Agreement to the contrary or unless required by law, Purchaser shall not, and shall cause all of its agents, contractors or representatives not to, contact or communicate with any Governmental Authority regarding any Hazardous Materials (as hereinafter defined) on the Property, without prior consent of the Whitehall Sellers and GMH Sellers. The GMH Sellers shall have the right to have a representative present when Purchaser or any agent, contractor or representative of Purchaser has, or causes to be had, any such activities which certificate shall provide that such insurance shall not be terminated contact or modified without at least thirty (30) days' communication with any Governmental Authority. The GMH Sellers agree to cooperate in making a representative available during normal business hours and upon 48 hours’ prior written notice for such purposes. As used herein, “Governmental Authority” shall mean any federal, state, county or municipal government, or political subdivision thereof, any governmental agency, authority, board, bureau, commission, department, instrumentality, or public body, or any court or administrative tribunal. As used herein, “Hazardous Materials” shall mean materials, wastes or substances that are (a) included within the definition of any one or more of the terms “hazardous substances,” “hazardous materials,” “toxic substances,” “toxic pollutants” and “hazardous waste” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), the Clean Water Act (33 U.S.C. Section 1251, et seq.), the Safe Drinking Water Act (14 U.S.C. Section 1401, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et seq.), and the Toxic Substance Control Act (15 U.S.C. Section 2601, et seq.) and the regulations promulgated pursuant to Seller.
such laws, (b) regulated, or classified as hazardous or toxic, under other federal, state or local environmental laws or regulations, (c) petroleum, (d) asbestos or asbestos-containing materials, (e) polychlorinated biphenyls, (f) flammable explosives or (g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsradioactive materials.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 2 contracts
Samples: Agreement for Sale of Partnership Interests (GMH Communities Trust), Agreement for Sale of Membership Interests (GMH Communities Trust)
Due Diligence. Purchaser (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 shall be permitted to enter upon the Property at any reasonable time and from time Premises, upon advance notice to time before the Closing Date to examineSeller, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of making surveys, tests, borings, inspections, investigations, or conducting its 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 provided that in each such instance (iPeriod”) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative unless extended by written agreement of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any per section 2A of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencethis agreement.
(bB) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does Buyer agrees that they will keep confidential and not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than except its attorneys, lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosureconsultants, any of the reports due diligence materials and any additional environmental, and/or other studies, tests, reports, and other documents generated in the due diligence activities or any other documentation or information obtained related activities that may be conducted by Purchaser which relates to either party. Any final report, analytical data, survey, and/or drawing generated during the Property or Seller in any way, all of which due diligence period by Buyer shall be used by Purchaser and its agents solely 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 connection with the event the transaction contemplated hereby. In by the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationparties fails to close.
(fC) Purchaser agrees 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 defend, and hold harmless Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all property damage, personal injury, and/or death claims, lossessuits, demands, liabilities, damages, costs expenses and expense costs, (includingincluding 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, reasonable attorneys' fees 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 court costsproviding 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) suffered or incurred by any 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 Indemnified Parties as a result 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 activities governmental entity or agency of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating pertaining to the Property, includingwhich items, without limitation, mechanics' liens, damage to the Property, injury extent not already provided to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition Seller at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits time of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver any termination of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, are to be delivered to Seller within twenty-one (ii21) communications between Seller and HCMC (except as days after such termination. Such items may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of retained by and used by Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive after Closing or any termination of this Agreement 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.
(collectivelyG) 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 Xxxxxxx 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 "Surviving Obligations")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
Samples: Agreement for the Sale and Purchase of Real Estate (Bard Holding, Inc.), Sale and Purchase Agreement (Bard Holding, Inc.)
Due Diligence. Purchaser Each of the parties shall have the right, during the period between the date hereof and its representatives shall be permitted to enter upon 11:59 p.m., Eastern Standard Time, on December 1, 1997 (the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due DiligenceDiligence Period"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon continue their respective due diligence investigation of the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date other party and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written give notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of it is terminating this Agreement because such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests due diligence investigation has indicated that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller a material adverse change in the scope and inspections for such testing; and (ii) obtaining other party has occurred of which the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third terminating party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any was unaware as of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all date of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller a material breach of the representations and HCMC (except warranties of the other party has occurred of which the terminating party was unaware as may be listed in paragraph 3.1 above)of the date of this Agreement and the terminating party reasonably believes that such breach is not capable of being cured by the Termination Date, or (iii) appraisalsin the case of ATS and ATSI, assessments or other valuations as the terminating party, ATS has reasonably determined that the Operating Cash Flow of Gearon for the quarter ending December 31, 1997 set forth in the financial projection included in Section 11.14 of the Property Gearon Disclosure Schedule is not likely to be achieved and the amount of such negative variance is reasonably likely to exceed 5 percent (5%); provided, however, that such negative variance shall not give rise to a termination right pursuant to the provisions of this Section if the amount of such variance is reasonably likely to be recouped in all material respects on or prior to March 31, 1998. In the event of any such termination, the terminating party shall give the other party written notice thereof prior to the expiration of the Due Diligence Period and, thereafter, the parties shall negotiate in good faith to determine the validity of the grounds of such termination and, if necessary, an adjustment in the possession Merger Consideration. If the parties are unable within ten (10) business days following the giving of Seller any such termination notice to resolve their differences, either party may termination this Agreement, whereupon it shall become void, there shall be no liability on the part of any party, or HCMCany of their respective shareholders, officers or directors, to the other and (iv) management agreements.
(h) Sections 3.2(e) all rights and 3.2(f) and obligations of any party shall cease; provided, however, that such other provisions termination shall not relieve any party from liability for any misrepresentation or breach of any of its warranties, covenants or agreements set forth in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")Agreement.
Appears in 2 contracts
Samples: Merger Agreement (American Radio Systems Corp /Ma/), Merger Agreement (American Tower Systems Corp)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) From the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller until 5:00 p.m. CST on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
date which is four (c) Purchaser shall, at least thirty-one (314) days prior to the Closing DateDate (the “Examination Period”), notify Seller in writing requesting termination agrees to disclose and make available to Purchaser and its representatives, at Seller’s office and during Seller’s normal business hours, all records as may be reasonably requested by Purchaser for the purpose of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that permitting Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contractcomplete its due diligence review. Purchaser shall assume all other Service Contracts maintain any such report in confidence, unless and to the manner provided hereinextent otherwise required by Applicable Laws.
(db) Seller shall permit Purchaser shall 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 Purchaser in Purchaser’s reasonable efforts to obtain, at Purchaser’s sole expense, such additional information relating to the Assets as Purchaser may reasonably desire, to the extent 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, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition conduct a Phase I environmental assessment of the PropertyProperties, provided, however, Purchaser is not permitted subject to perform any intrusive testing (except for limited asbestos sampling to be done as part of the terms set forth in this Section 6.1. Purchaser's ’s Phase I site assessment), including, without limitationenvironmental assessment must be conducted by an agent or representative of Purchaser reasonably acceptable to both Seller and Purchaser. For purposes of this Agreement, a “Phase II I environmental assessment or boring, without assessment” means (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent a review of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees ’s and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coveragegovernment’s environmental records, (ii) waiver the submission of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice pre-inspection questionnaires to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations a site visit to visually inspect the Properties accompanied by a representative of the Property in the possession of Seller or HCMCSeller, and (iv) management agreementsinterviews 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 any such sampling or testing be permitted without the prior written approval of Seller, which approval shall not be unreasonably withheld or delayed. Seller shall be entitled to receive a copy of any final Phase I inspection reports for the Properties.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 2 contracts
Samples: Asset Purchase Agreement (Jones Energy, Inc.), Asset Purchase Agreement (Jones Energy, Inc.)
Due Diligence. Each Purchaser (other than TSC) shall be fully satisfied in its sole discretion with the results of its review of, and its representatives shall be permitted to enter upon due diligence investigations with respect to, the Property at any reasonable time business, operations, affairs, prospects, properties, assets, existing and from time to time before potential liabilities, obligations, profits and conditions (financial or otherwise) of the Closing Date to examine, inspect and investigate Company (including the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"Disclosure Schedule). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, A Purchaser shall be deemed to have accepted be so satisfied unless it notifies the assumption of such Service Contract. Purchaser shall assume all other Service Contracts Company in the manner provided herein.
(d) Purchaser shall have the right to conduct, writing at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent11:59 p.m., unless Purchaser Eastern Time, on the date that is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of fourteen (14) calendar days after the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination date of this Agreement (collectivelythe "Diligence Termination Time") that it is terminating this Agreement pursuant to Section 7.01(c)(iv) because it is not so satisfied. Until the Closing, the Company shall (and shall cause each of the Subsidiaries to) cooperate promptly and fully with Purchasers' officers, employees, counsel, accountants and other authorized representatives (the "Surviving ObligationsRepresentatives") and shall afford such Representatives reasonable access during normal business hours to all of its (1) sites, properties, books, contracts and records and personnel and advisers (who will be instructed by the Company to cooperate), (2) such additional financial and operating data and other information as to its business and properties as the Purchasers may from time to time reasonably request, including without limitation, access upon reasonable request to the Company's Representatives, major customers, vendors, suppliers and creditors for due diligence inquiry. The Company shall (and shall cause each of the Subsidiaries to) furnish promptly to the Purchasers all information concerning its business, properties and personnel as the Purchasers or their Representatives may reasonably request on or before the Diligence Termination Time; provided that any review will be conducted in a way that will not interfere unreasonably with the conduct of the Company's business. The Purchasers will keep all information and documents obtained pursuant to this Section 6.03(e) on a confidential basis subject to Section 5.09(a).
Appears in 2 contracts
Samples: Securities Purchase Agreement (American International Group Inc), Securities Purchase Agreement (Perini Corp)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) The Seller shall give the Purchaser shall have a and the Purchaser's officers, employees, legal counsel, accountants and other representatives free and full access to and the right to enter upon inspect, during normal business hours, all of the Property premises, properties, assets, records, contracts and other documents of the Seller relating to the Business or the Purchased Assets, and shall permit them to consult with the officers, employees, accountants, legal counsel of Seller or agents of the Seller, customers of and suppliers to the Business for the purpose of conducting its Due Diligence provided making such investigation as the Purchaser shall consider appropriate; provided, that in each such instance (i) Purchaser notifies Seller such investigation shall not unreasonably interfere with the business operations of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entryBusiness; (ii) Purchaser shall, at Seller's request, direct all requests for information through a designated representative of Seller or the date and approximate time period are scheduled with SellerShareholder; and (iii) Purchaser is shall hold in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At confidence all such documents and information and shall return or destroy, at Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any wayrequest, all of which shall be used by Purchaser and its agents solely such documents in connection with the transaction contemplated hereby. In the event that this Agreement is terminated. Prior to the Closing, this subsection 3.2(e) the Seller shall survive terminationfurnish to the Purchaser all such documents and copies of documents and records and information which relate to the Business or the Purchased Assets and copies of any working papers relating thereto as the Purchaser shall from time to time reasonably request.
(fb) Prior to and after the Closing, the Seller shall promptly advise the Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders in writing of the commencement or threat (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by of which any of them has knowledge) against the Indemnified Parties as a result Seller of any activities of Purchaser (including activities of any of Purchaser's employeesclaim, consultantsaction, contractors suit or other agents) relating proceeding that relates to or might reasonably be expected to materially affect the Property, including, without limitation, mechanics' liens, damage to Business or the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to SellerPurchased Assets.
(gc) Prior to the Closing, Seller and Purchaser acknowledges and agrees that shall each use commercially reasonable efforts to take any action where the failure or omission to take such action would cause (x) any representation or warranty made by it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreementany other Seller Document or Purchaser Document, (ii) communications between Seller and HCMC (except as may applicable, to be listed in paragraph 3.1 above), (iii) appraisals, assessments untrue or other valuations incorrect as of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination (y) any of this Agreement shall survive the conditions to the Closing or any termination of this Agreement (collectively, the "Surviving Obligations")set forth herein not to be satisfied.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Invivo Corp), Asset Purchase Agreement (Invivo Corp)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser Buyer may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conductcomplete, at its sole cost and expense, any inspections, surveys (including an ALTA survey), environmental diligence (including a Phase I and Phase II Environmental Assessment), zoning and entitlement review, any due diligence investigation as defined in the Letter of Intent Section 8, and studies of the Property as Buyer deems necessary or tests appropriate to inspect or evaluate the Property.
(b) Buyer may request and Seller will provide to Buyer, all material and information and documentation, that Purchaser deems appropriate is in determining the condition possession of the Seller, and which is stored in an electronic medium, including but not limited to leases, covenants, conditions, and restrictions, drawings, and plans if any, which is in its possession, its affiliates, and/or property manager possession, and Seller shall provide access to certain City archives containing additional information regarding the Property or the Environmental Restrictions,
(c) Xxxxx understands and agrees that any on-site inspections of the Property shall occur at reasonable times agreed upon by the Buyer and Seller after reasonable prior written notice from Buyer to the Seller (which shall, in all cases, be at least 24 hours in advance), and in compliance with the Environmental Restrictions. If Buyer desires to do any invasive testing at the Property, providedthen Buyer shall do so only after reasonable prior written notice to the Seller (which shall, howevernotwithstanding anything to the contrary contained above, Purchaser is not permitted to perform any intrusive testing be at least three (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i3) submitting to Seller the scope business days in advance) and inspections for such testing; and (ii) obtaining the Seller’s prior written consent of Sellerthereto, which consent shall not be unreasonably withheld, conditioned, or delayed, and which consent, if given, may be subject to any terms and conditions imposed by the Seller in its reasonable discretion, including, without limitation, the prompt restoration of the Property to substantially the same condition as existed prior to any such inspections or tests, at Buyer’s sole cost and expense. Prior to conducting any physical inspection or testing at the Property, other than a mere visual examination, by Buyer or its agents, employees, contractors, or representatives, Buyer shall deliver insurance certificates to the Seller evidencing that Buyer carries and maintains such general liability insurance policies with such companies and in such scope and amounts as are acceptable to the Seller in its reasonable discretion, and in all cases, naming the Seller as an additional insured party and loss payee thereunder. At the Seller’s request, Xxxxx shall promptly furnish to the Seller copies of any reports received by Buyer relating to its inspections of the Property. In conducting any physical inspections or tests of the Property, Buyer will comply the requirements and restrictions contained in the Environmental Restrictions, which may include seeking DEQ approval for activity at the Property.
(ed) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser Xxxxx agrees to protect, indemnify, defend defend, and hold Seller and the City, its partners, trusteesmembers, beneficiariesand affiliates and each of their respective officers, directors, shareholders, members, managers, advisors and other agents and their respective employees, officersagents, directors successors, and shareholders assigns (collectively the "Indemnified Parties") harmless from and against any and all claimsclaims for liabilities, losses, damages, costs and expense expenses (including, without limitation, including reasonable attorneys' fees and court costs) suffered fees), damages, or injuries actually incurred by any of the Indemnified Parties as a result arising out of, resulting from, relating to, or connected with: (a) any inspections or testing of the Property by Buyer or its agents, representatives, contractors, or employees and (b) any activities breach or violation of Purchaser the provisions of this Section on the part of Buyer.
(including activities e) Xxxxx agrees that Seller or its employees or agents may accompany Buyer when Buyer conducts any physical inspection of any the Property. Buyer’s physical inspection of Purchaser's employeesthe Property may include soils and geotechnical assessments and an ASTM Phase I survey, consultantsor equivalent environmental due diligence investigation, contractors of the Property to determine or other agentsconfirm the condition of the Property.
(f) relating Buyer will not suffer or permit to be enforced against the Property, including, without limitation, mechanics' liens, damage to or any part of the Property, injury to persons any preconstruction or property resulting construction liens arising from such activitiesthe work of the Buyer or any of its contractors or agents, and in Buyer will pay or cause to be paid (or otherwise resolved through bonding or other appropriate security instrument as provided by applicable law) all of the event that liens, claims, or demands before any action is brought to enforce the Property is disturbed same against the Property. Xxxxx hereby indemnifies, defends, and holds harmless Seller from and against all loss, cost, expense, liability, damage, fine, or altered other claim (including attorneys’ fees and related costs) arising out of or in any way as a result of such activitiesconnected with work performed or materials or supplies furnished for Buyer or its contractor, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb agents, or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Selleremployees.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any The provisions of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly Section 8 will survive Closing or earlier termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")Agreement.
Appears in 2 contracts
Samples: Real Property Purchase and Sale Agreement, Real Property Purchase and Sale Agreement
Due Diligence. Purchaser and its representatives Property Management Seller hereby agrees to deliver to Property Management Buyer within three (3) business days of the effective date (for purposes herein, said delivery shall be permitted to enter upon require that Property Management Seller make available all such materials at the Location of the Management Company), which shall mean the date on which the last of the Property at Management Buyer, Property Management Seller and any reasonable time and from time to time before the Closing Date to examineother party signing this Agreement shall have signed or initialed this Agreement, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property applicable (collectively“Effective Date”), "Due Diligence"). The those due diligence items (“Due Diligence shall be subject to the terms, conditions and limitations Items”) requested by Property Management Buyer or set forth in this Section 3.2.
(a) Purchaser herein. Property Management Buyer shall have a right to enter upon the Property for the purpose of conducting its thirty (30) days (“Due Diligence provided that in each such instance (iPeriod”) Purchaser notifies Seller from receipt of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which Items to conduct its review and to approve the Due Diligence andItems and any other information or documentation it acquires. If Property Management Buyer, in Purchaser's its sole discretion, does not approve any of the Due Diligence Items or any of the information provided to determine whether Property Management Buyer pursuant to this section or any information or documentation it otherwise acquires at any time prior to the Property is acceptable to Purchaser. If during expiration of the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to PurchaserManagement Buyer, Purchaser at its option, may terminate this Agreement by giving written notice of termination to Property Management Seller on or before delivered at any time prior to the last day expiration of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, whereupon this Agreement shall automatically terminate. In become null and void and of no further force and effect, the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
Deposit (cas defined below) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates returned to the Property or Seller in any way, all of which shall be used by Purchaser Management Buyer and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it parties hereto shall have no further obligation to one another. Property Management Buyer’s failure to terminate this Agreement pursuant to this Section 1.4 shall not affect Property Management Buyer’s right to review or inspect any require the satisfaction of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller all conditions to closing set forth in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between . Property Management Buyer and Property Management Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the shall also reasonably cooperate with Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination Management Buyer following execution of this Agreement shall survive Closing or to obtain the transfer of any termination licenses in favor of this Agreement (collectively, Property Management Buyer necessary to run the "Surviving Obligations")Business.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Ark Restaurants Corp)
Due Diligence. Purchaser Seller shall deliver or make available to Buyer within fifteen (15) days after the Effective Date, all reports, surveys, studies, assessments or other due diligence information and its representatives shall be permitted material relating to enter upon the Property that is in the possession or under the control of Seller (“Existing Information”). Buyer, at any reasonable time its sole cost expense, shall have ninety (90) days from the Effective Date hereof to review the Existing Information and from time to time before make or cause to be made such investigations of the Closing Date Property, and their condition, to examine, inspect and investigate the extent that Buyer or its advisors deem necessary or advisable (“Due Diligence Period”). Seller shall allow Buyer to have full access to the Property as well as and all records and other documentation relevant records, including environmental records, in its possession pertaining to the Property. The Existing Information provided by Seller shall be treated as strictly confidential by Buyer, and the same shall not be disclosed to any third party or located at governmental entity, except as required by law or pursuant to requirements of any governmental authority. In the event that the Closing shall not occur, Buyer shall, except as required by law or in order to dispute any assertion by Seller as to Buyer’s reason for terminating this Agreement, return to Seller all Existing Information and copies thereof obtained from Seller during the course of its investigation and shall maintain the confidentiality of the Existing Information. The results of any environmental report, test, investigation or study conducted by Buyer shall be treated as strictly confidential by Buyer and the same shall not be disclosed to any third party or governmental entity prior to Closing, except as required by law (including open records laws applicable to State agencies) or pursuant to requirements of any governmental authority. Buyer shall provide Seller with a copy of any reports or analyses relating to the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry obtained by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If Buyer during the Due Diligence Period, Purchaser becomes aware of any problem or defect in . The Parties acknowledge and agree that the Property or any other aspect provision by Seller of the Property which Purchaser determines makes the Property unsuitable Existing Information is an accommodation to PurchaserBuyer only and that, Purchaser may terminate this Agreement by giving written notice of termination to except as provided above and as otherwise provided herein, Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have make any further obligations representation or warranty as to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any Existing Information or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part . The provisions of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller this Section shall survive the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any termination of the reports or Agreement for any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationreason.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(aA) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) From the date hereof and approximate time period are scheduled with Seller; until and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement Agreement, the Company shall survive (and shall cause each of its Subsidiaries to) afford to Progressive, including its officers, employees, counsel, accountants and other authorized representatives (“Progressive Representatives”), reasonable access, during normal business hours, to all of the 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 such Progressive Representatives, upon request, all information concerning its organization, ownership, business, operations, assets, properties, personnel and affairs as may reasonably be requested, and access to all of its personnel and representatives (including its independent accountants), provided that neither the investigation conducted pursuant to this Section 7.3, nor Progressive's review of the 2014 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. Notwithstanding the foregoing, the Company shall not be required to provide access to or to disclose information where such access or disclosure could jeopardize the 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 the date hereof.
(B) Subject to the requirements of law, Progressive will keep confidential, and will 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 Company so that the parties can work together to limit the disclosure to the greatest extent possible and, in the event that Progressive is legally compelled to disclose any information, to seek a protective order or other appropriate remedy or both. Upon any termination of this Agreement (collectivelyAgreement, Progressive will collect and return to the "Surviving Obligations")Company all documents obtained pursuant to this Section 7.3 or otherwise by it or any of the Progressive Representatives then in their possession and any copies thereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Progressive Corp/Oh/), Stock Purchase Agreement (Xl Group PLC)
Due Diligence. Purchaser and its representatives shall be permitted A. For sixty (60) days after the date hereof (hereinafter referred to enter upon as the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due DiligenceFeasibility Period"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a the right to enter upon conduct tests on the Property for soil or other substrate, surface water, groundwater or any Improvement on the purpose Property, to determine the availability of conducting its utility services, to review all Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property Documents, as hereinafter defined, and to conduct its Due Diligence not less than 48 hours prior such other Investigations and inquiries and meet with such governing authorities as Purchaser deems necessary to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence anddetermine, in Purchaser's sole and absolute discretion, to determine whether the suitability of the Property. Purchaser's Investigation of the Property may include, without limitation, the availability of such municipal variances and approvals as may be required by Purchaser and such physical inspections of the Property as Purchaser shall deem necessary. If Purchaser determines, during the Feasibility Period, for any, reason, in Purchaser's sole and absolute discretion, that the Property is acceptable not suitable, Purchaser shall give Seller written notice to Purchaser. If during that effect, within three (3) days after the Due Diligence expiration of the Feasibility Period, Purchaser becomes aware and on Seller's receipt of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Moneysuch notice, this Agreement shall automatically terminate. In such event, Purchaser shall substantially restore the event Property to its former condition, whereupon there shall be no further liability of such termination, neither either party shall have any further obligations to the other party hereunder, except for with respect to the Surviving ObligationsProperty pursuant to the terms of this Agreement.
(ci) Purchaser shall, at least thirty-one (31) days prior to During the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service ContractFeasibility Period, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser and Purchaser's employees, agents, representatives and contractors shall have the right to conductenter upon the Property for purposes of making such surveys, at its sole cost engineering studies, feasibility studies, environmental assessments, general inspections and expenseother customary and reasonable studies, any inspections, studies or inspections and tests that as Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and necessary.
(ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which All entry shall be used by at the sole risk and expense of Purchaser and its agents solely in connection with the transaction contemplated herebyemployees, agents, representatives and contractors. In the event that this Agreement is terminated, this subsection 3.2(e) Purchaser shall survive termination.
(f) Purchaser agrees to indemnify, defend Indemnify and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, lossescosts, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered injury or incurred by damages of any kind arising out of the Indemnified Parties as a result of any activities of Purchaser (including activities of any performance of Purchaser's due diligence investigation by Purchaser, Its employees, consultantsagents or representatives.
C. As used herein, contractors Due Diligence Documents shall mean the following:
(i) All plans, as-built plans, engineering plans, designs, reports or other agentsdrawings relative to the Building to the extent in possession of Seller;
(ii) relating All environmental reports, inspection results or communications with the New Jersey Department of Environmental Protection ("NJDEP") relative to the Property, including, without limitation, mechanics' liens, damage ;
(iii) All appraisal reports relative to the Property, injury ;
(iv) An itemization of operating expenses relative to persons or property resulting from such activities, and in operation of the event that Property;
(v) All tax bills relative to the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore within the last three (3) years;
(vi) All insurance policies relative to the Property to its condition existing prior within the last three (3) years;
(vii) All utility bills relative to the commencement of such activities which disturb or alter Property within the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses last three (including, without limitation, reasonable attorneys' fees and court costs3) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with years;
(iviii) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior All public notices relative to the commencement Property of such activities which certificate shall provide that such insurance shall not be terminated any special assessments, improvements or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of public project impacting the Property in any way, received by Seller within the possession of Seller or HCMC, and last three (iv3) management agreements.years;
(hix) Sections 3.2(eAll notices of any land use or development applications impacting the Property or otherwise required by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., received by Seller within the last three (3) and 3.2(fyears;
(x) and such All notices of violation relative to the Property received by Seller;
(xi) All Certificates of Occupancy relative to the Property;
(xii) All permits, approvals or certifications relative to the Property;
(xiii) All service or maintenance agreements in effect relative to the Property; and
(xiv) Such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")documents that may reasonably be requested by Purchaser.
Appears in 1 contract
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate until 5:00 p.m. eastern standard time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through on the last day of the Due Diligence Period in which to conduct its Due Diligence examine, inspect, and investigate the Property and, in Purchaser's ’s sole and absolute judgment and discretion, to determine whether the Property is acceptable to Purchaser and to obtain all necessary internal approvals of Purchaser. If during Notwithstanding anything to the Due Diligence Period, Purchaser becomes aware of any problem or defect contrary in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaserthis Agreement, Purchaser may terminate this Agreement by giving written notice of termination to Seller (the “Due Diligence Termination Notice”) on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, give a notice of its intent to continue this Agreement shall automatically terminate. In beyond the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all expiration of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service ContractDue Diligence Period, Purchaser shall be deemed to have accepted given a Due Diligence Termination Notice, and this Agreement shall be deemed terminated. Subject to the assumption rights of such Service Contracttenants in the Property and in a manner that will minimally disturb any tenants, Purchaser shall have reasonable access to the Property for the purpose of conducting surveys, architectural, engineering, geotechnical and environmental inspections and tests (including intrusive inspection and sampling), and any other inspections, studies, or tests reasonably required by Purchaser. Purchaser shall assume keep the Property free and clear of any liens and will indemnify, defend, and hold Seller harmless from all claims and liabilities asserted against Seller as a result of any such entry by Purchaser, its agents, employees or representatives, excluding any claims or liabilities arising from Purchaser’s discovery of any condition relating to the Property. If any inspection or test disturbs the Property, Purchaser will restore the Property to substantially the same condition as existed prior to any such inspection or test. Purchaser and its agents, employees, and representatives shall have a continuing right of reasonable access to the Property during the pendency of this Agreement, upon reasonable notice, for the purpose of examining and making copies of all books and records and other Service Contracts materials relating to the Property in the manner provided herein.
(d) Seller’s or its property manager’s possession and Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition conduct a “walk-through” of the Property, provided, howeverProperty prior to the Closing upon appropriate notice to tenants as permitted under the Leases. In the course of its investigations, Purchaser may, after providing notice to Seller of such parties with whom contact is not permitted desired, make inquiries to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third parties, including, without limitation, lenders, contractors, property managers, parties to Service Contracts and municipal, local and other government officials and representatives, and Seller consents to such inquiries; however no inquiries to any governmental officials shall be for the purpose of requesting a Phase II environmental assessment or boringsite inspection of the Property. Prior to any entry onto any Property, without (i) submitting the Purchaser shall provide to Seller evidence of general commercial liability covering the scope and inspections for such testing; and (ii) obtaining the prior written consent actions of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with on the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend Property and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and insuring against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liensloss,, damage to the Property, or injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activitiesentry, Purchaser which policy shall promptly restore the Property name Seller as an additional insured thereunder or otherwise be in a form reasonably acceptable to its condition existing prior to the commencement of such activities which disturb or alter the PropertySeller. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy obligations of the certificate of insurance effectuating Purchaser under this paragraph shall survive the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any termination of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement (Asset Capital Corporation, Inc.)
Due Diligence. (a) Seller shall provide Purchaser and its representatives shall be permitted Entity Representatives with access in accordance with this Article 4 to enter upon the Property at any reasonable time and from time to time before the Closing Date to examineBackground Materials, inspect and investigate the Property as well as all records Acquired Records, Acquired Data, and other documentation provided by Acquired Assets of Seller or located at for inspection and review to permit Purchaser to perform its due diligence review (the Property (collectively, "Due Diligence"). The “Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(aReview”) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent until the Defect Notice Deadline, with respect to enter Purchaser’s due diligence regarding the Property to conduct its Due Diligence not less than 48 hours prior to such entry; First Closing Assets, and (ii) only during the date and approximate time period are scheduled Second Defect Review Period, with Seller; and (iii) Purchaser is in full compliance with respect to Purchaser’s due diligence regarding the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due DiligenceSecond Closing Assets.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property Notwithstanding Section 4.1(a) or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate provision in this Agreement by giving written notice to the contrary, any obligation of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, under this Agreement shall automatically terminate. In the event of to make any such terminationBackground Materials, neither party shall have Acquired Records, Acquired Data, and other Acquired Assets or any further obligations other information available to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without be: (i) submitting only to the extent that doing so does not violate any confidentiality or other obligation under any contract or agreement of Seller the scope and inspections for such testingor any of its Affiliates to any third party; and (ii) obtaining only to the prior written consent extent such Background Materials, Acquired Records, Acquired Data, or other information are not, in the judgment of SellerSeller or its counsel, which consent protected by the attorney- client privilege, the work product doctrine, or other applicable privilege or any such privilege would be likely to be waived, voided, rendered voidable or destroyed by disclosure to Purchaser or any of its Entity Representatives; provided, however, that (only to the extent that doing so does not violate any confidentiality or other obligation under any contract or agreement of Seller or any of its Affiliates to any third party), Seller shall provide to Purchaser a summary of the matters covered by such withheld Background Materials, Acquired Records, Acquired Data, other Acquired Assets or any other information and, provided further, that any information withheld by Seller pursuant to this Section 4.1(b) shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not deemed to disclose to any third party (other than lendersbe a qualification, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules exception or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates limitation to the Property or representations and warranties of Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with otherwise limit the transaction contemplated by remedies or indemnification rights of Purchaser under this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Due Diligence. Purchaser From the Effective Date until 5:00 p.m. PDT on the date that is twenty-one days following the Effective Date (the “Inspection Period”), Seller shall allow Buyer and their respective agents, consultants and prospective tenants access to the Property upon reasonable notice, and upon execution by such party and delivery to Seller of an Access Agreement in the form previously delivered to Buyer, for the purposes of conducting non-invasive surveys, tests, and inspections, provided that they shall be conducted in such a manner as not to unreasonably interfere with normal business operations on the Property. Such inspections may include, without implied limitation, inspections and investigations relating to the general building, the sewage disposal system, the water and water distribution systems, the heating and air conditioning systems, power distribution and backup power systems, roof, and foundation. All inspections and investigations shall be conducted at Buyer’s cost. All inspections and investigations shall be conducted by qualified professionals in accordance with applicable legal requirements. After its inspections are completed, Buyer, at Buyer’s sole cost and expense, shall promptly restore the Property to its prior condition. Buyer agrees to indemnify and hold Seller harmless from all liability, loss, cost, damage or expense arising from the conduct of any such survey, test, or inspection by Buyer or Buyer’s agents or contractors, except such as may result from the mere discovery of existing conditions on the Property. Buyer also (i) shall not contact any governmental agencies without the prior written consent of Seller (provided that Buyer shall be entitled to contact governmental agencies, without the consent of Seller, for the sole purpose of confirming the zoning or land-use status of the Property); (ii) shall permit a representative of Seller to accompany Buyer on any interviews with governmental agencies (except as provided in the parenthetical in the preceding clause (i)) or on other inspections of the Property; (iii) shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, promptly discharge of record any such liens or encumbrances that are so filed or recorded; (iv) shall not permit any borings, drillings or samplings to be done without the prior written consent of Seller; (v) shall maintain, with insurance companies satisfactory to Seller, a policy of comprehensive general public liability insurance, with a broad form contractual liability endorsement covering Buyer’s indemnification obligations hereunder, and with a combined single limit of not less than $2,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the amount of $5,000,000, insuring Seller and its representatives affiliates as additional insureds (certificates of which shall be permitted given to enter upon Seller prior to the first entry on the Property), all of which insurance shall be written on an “occurrence form”; and (vi) shall deliver to Seller all materials with respect to the Property if Buyer fails to acquire the Property for any reason. The provisions of this Section shall survive the termination of this Agreement. Seller has previously provided to Buyer or has made and will continue to make available at the Property at any reasonable time and from time to time before on or after the Closing Date to examineEffective Date, inspect and investigate for review by the Property as well as all records and other documentation provided by Seller or located at the Property (collectivelyBuyer, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entrySeller’s Owner’s Title Insurance Policy; (ii) the date and approximate time period are scheduled with Seller’s Current Preliminary Title Report; (iii) ALTA Survey, prepared by DCA Civil Engineering Group dated February 20, 2004; (iv) Seller’s Phase I Environmental Report; and (iiiv) Purchaser is Seller’s Infrastructure Equipment List as well as the items listed on Exhibit B attached hereto and made a part hereof (items (i)-(v) and those items listed on Exhibit B herein collectively, the “Due Diligence Materials”). Buyer may obtain, at its sole cost, and review a non-invasive Phase I environmental report from a reputable professional engineering firm licensed in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative California and an updated A.L.T.A. survey of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liensBuyer may, materialmen's liens or other liens to be filed against the Property as a result of at its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole and absolute discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Periodfor any reason or no reason, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate its obligations under this Agreement by giving written notice of termination to Seller on or before prior to the last day end of the Due Diligence Inspection Period. If Purchaser does not timely deliver In that case, (a) Escrow Holder is instructed to return the Xxxxxxx MoneyDeposit, together with any accrued interest, to Buyer, and (b) except for obligations that this Agreement shall automatically terminate. In the event of such expressly states survive termination, neither party shall have any further obligations rights hereunder against the other. Failure of Buyer to elect to terminate its obligation will constitute a waiver of the other party hereundercondition by Buyer. If Buyer does not terminate this Agreement pursuant to this Paragraph 15, except for Buyer shall have agreed to accept the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior Property in its current condition and subject to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts conditions disclosed in the manner provided herein.
(d) Purchaser shall have items listed on Exhibit B, including without limitation, the right to conductPermitted Exceptions, at its sole cost the matters shown on the survey prepared by DCA Civil Engineering Group dated February 20, 2004, and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the environmental and physical condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
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Due Diligence. Purchaser and Prior to the Effective Date, Seller shall furnish the Due Diligence Documents to Buyer. In addition, Seller shall deliver any other documents in its representatives possession or control relating to the Property reasonably requested by Buyer within three (3) business days following any such request. Buyer shall have the right to terminate this Agreement at any time prior to the expiration of the Due Diligence Period, for any or no reason at all, upon written notice to Seller, in which event this Agreement shall be permitted to enter upon the Property at any reasonable time null and from time to time before the Closing Date to examine, inspect void and investigate the Property as well as all records of no further force and other documentation provided by Seller or located at the Property effect (collectively, "Due Diligence"). The Due Diligence shall be subject except for rights and obligations that survive a termination of this Agreement pursuant to the termsexpress terms of this Agreement) and, conditions and limitations set forth notwithstanding anything in this Section 3.2.
(a) Purchaser 4 of this Agreement to the contrary, Escrow Agent shall immediately return the Xxxxxxx Money Deposit to Buyer. At all times prior to Closing, Buyer and its agents shall, upon reasonable notice, have a the right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent Property, at their own risk and at reasonable times which do not interrupt normal business operations, to enter inspect the Property and conduct such due diligence investigations as Buyer deems necessary. Seller agrees to conduct its Due Diligence not less than 48 hours prior provide access to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect parts of the Property which Purchaser determines makes and cooperate with such inspections and investigations in any way reasonably requested by Buyer. Notwithstanding the Property unsuitable to Purchaserforegoing, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does Buyer shall not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have conduct any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive invasive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser Buyer agrees to indemnify, defend repair any damage and to indemnify and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claimsloss, lossesliability, damagesmechanics’ lien, costs and expense (cost, damage, expense, claim or judgment incurred or suffered by Seller arising out of or related to such investigations of the Property by Buyer; excluding, however, any loss, liability, cost, damage, expense, claim or judgment resulting from any unfavorable test result or the discovery of any undesirable existing condition on, in, under or about the Property, such exclusion including, without limitation, reasonable attorneys' fees and court costs) suffered any loss resulting from any decrease in the fair market value of all or incurred by any portion of the Indemnified Parties as a result Property or the inability of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating Seller to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that market the Property is disturbed due to any such discovery or altered in any way as a result unfavorable test result. Buyer’s agents shall provide proof of such activities, Purchaser shall promptly restore the Property insurance reasonably satisfactory to its condition existing Seller prior to the commencement of such activities which disturb or alter gaining access to inspect the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery Any provision of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior this Agreement to the commencement contrary notwithstanding, the repair and indemnification obligation of such activities which certificate Buyer under this Section 4 shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing and the transfer of title or any earlier termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")Agreement.
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Due Diligence. Purchaser and its representatives Buyer shall be permitted to enter upon have until 5:00 p.m. Pacific Time on the Property at any reasonable time and from time to time before fifteenth (15th) day after the Closing Effective Date (the “Due Diligence Period”) in which to examine, inspect inspect, and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectivelyProperty, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's Buyer’s sole and absolute judgment and discretion, to determine whether the Property same is acceptable satisfactory to PurchaserBuyer. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser Buyer may terminate this Agreement pursuant to this Section by giving written notice of termination (the “Due Diligence Termination Notice”) to Seller and Title Company on or before 5:00 p.m. Pacific Time on the last day of the Due Diligence Period. If Purchaser This Agreement shall continue in full force and effect if Buyer does not timely deliver give a Due Diligence Termination Notice on or before 5:00 p.m. Pacific Time on the Xxxxxxx Moneylast day of the Due Diligence Period, and Buyer’s failure to provide such notice shall constitute Buyer’s waiver of the termination right provided in this Agreement shall automatically terminateSection. In the event of Buyer elects to terminate this Agreement pursuant to this Section, then (i) promptly upon such termination, Buyer shall deliver to Seller all information, materials and data (collectively, the “Information”) that Buyer and/or its agents, employees, representatives, consultants or contractors (collectively, “Buyer’s Agents”) discover, obtain or generate in connection with or resulting from Buyer’s investigation of the Property, other than internal analyses produced by Buyer of a proprietary nature or items that are reasonably subject to attorney-client privilege, (ii) the Initial Deposit shall be released to Buyer (subject to the provisions of Section 4.1), and (iii) Buyer shall pay all title, survey and escrow charges, whereupon neither party Buyer nor Seller shall have any further obligations obligation or liability to the other party hereundereach other, save and except for the waivers, releases, indemnity, document return and insurance obligations of Buyer that are stated to survive the termination of this Agreement (the “Surviving Obligations”).
4.2.1 Buyer shall have access to the Property at reasonable times (csubject to Seller’s prior approval of the specific time and activities to be conducted by Buyer during such access, and Seller’s security requirements) Purchaser shallduring the term of this Agreement for the purpose of conducting inspections and tests reasonably required by Buyer (collectively, at the “Inspections”). At least thirty-one (311) business days prior to the Closing Date, notify Seller in writing requesting termination of any entry on or all Inspection of the Service ContractsProperty, which are noted on Schedule 2 as being terminable upon thirty Buyer shall: (30i) days notice, that Purchaser does not elect deliver to assume. If Purchaser does not timely give Seller written notice requesting termination of a Service Contract, Purchaser shall be deemed its intention to have accepted enter the assumption Property to conduct such Inspection and the proposed date and time of such Service Contract. Purchaser shall assume all other Service Contracts entry (Buyer may enter only on the dates and at the times that have been approved in the manner provided herein.
(d) Purchaser advance by Seller, and Seller shall have the right to conducthave one or more of its agents or representatives accompany Buyer and Buyer’s Agents at all times while Buyer and Buyer’s Agents are on the Property); (ii) provide Seller copies of any work plans for any testing for Seller’s prior written approval, which work plan Seller may modify, limit or disapprove in its sole but reasonable discretion; and (iii) provide Seller with certificates of insurance from Buyer and from each Buyer’s Agent inspecting the Property (from an insurance carrier reasonably acceptable to Seller) evidencing the existence of (a) commercial general liability insurance, in an amount not less than $2,000,000 combined limits for any injuries, deaths or property damage sustained as a result of any one accident or occurrence, (b) worker’s compensation insurance at statutory limits, and (c) employer’s liability insurance in an amount not less than $1,000,000 for each accident, disease per employee and disease policy limit. The commercial general liability insurance shall name Seller as an additional insured. Additionally, Buyer, on behalf of Buyer and Buyer’s Agents, hereby waives any claims against the Indemnitees (defined below) for any injury to persons (except to the extent such injury is caused by Seller’s gross negligence or willful misconduct) or damage to property arising out of any Inspections, including, without limitation, any damage to the tools and equipment of Buyer or Buyer’s Agents, all of which shall be brought onto the Property at the sole risk and responsibility of Buyer and Buyer’s Agents.
4.2.2 Buyer shall, at its sole cost and expense, comply with all applicable federal, state and local laws, rules, statutes, regulations, ordinances, or policies in conducting the Inspections. Buyer shall keep the Property free clear of any inspectionsliens and shall hold harmless, studies or tests that Purchaser deems appropriate in determining protect, defend (with counsel reasonably acceptable to Seller) and indemnify Seller and its respective officers, directors, employees, contractors, agents, subsidiaries and affiliates, and its respective successors and assigns (collectively, the condition of “Indemnitees”) and the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all liabilities, claims, demands, causes of action, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, penalties, fines, taxes, remedial actions, removal and disposal costs, investigation and remedial costs and expenses (including, without limitation, reasonable attorneys' fees ’, expert and court costsconsultant fees), whether direct or indirect, known or unknown (collectively, “Claims”) resulting from arising out of or relating to the work or activities conducted on the Property by Buyer or Buyer’s Agents, including without limitation any Claims for (i) any injuries to persons (including death) or damage to any property; provided, however, that the foregoing indemnity shall not extend to (1) any liabilities to the extent arising as a result of the mere discovery by Buyer of information a pre-existing condition that has a deleterious effect on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insuranceor (2) any Claims caused by Seller’s gross negligence or willful misconduct, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, or (ii) waiver any mechanic’s, workers’ or other liens on the Property, by reason of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior or relating to the commencement of such work or activities which certificate conducted on the Property by Buyer or Buyer’s Agents. In no event shall provide that such insurance Buyer indemnify Seller for any Claims caused by Seller’s gross negligence or willful misconduct. The foregoing provisions shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect limited in any way by any other terms of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of shall survive the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement Agreement.
4.2.3 Buyer shall, at its sole cost and expense, clean up and repair the Property in whatever manner necessary after Buyer or Buyer’s Agents’ entry thereon so that the Property shall survive Closing be returned to the same condition that existed prior to Buyer’s or Buyer’s Agents’ entry thereon.
4.2.4 Buyer shall promptly provide to Seller’s counsel a copy of all Information that Buyer or Buyer’s Agents discover, obtain or generate in connection with or resulting from their Inspections and work under this Section. All such Information shall be deemed confidential, and Buyer shall not disclose or permit Buyer’s Agents to disclose to any termination third party, other than Buyer’s consultants, agents and attorneys associated with the applicable investigation of this Agreement (collectivelythe Property and other than as may be required by applicable law, the "Surviving Obligations")results of Buyer’s Inspection. Buyer shall, in addition, be entitled to disclose the results of Buyer’s Inspection to investors and potential lenders with respect to the Property and shall further be entitled to disclose such information as required by applicable law, including, without limitation, as required by service of process or subpoena, and in connection with any litigation between Seller and Buyer. Buyer shall indemnify, defend, protect and hold harmless the Indemnitees from and against all Claims arising out of Buyer’s breach of the foregoing obligations.
Appears in 1 contract
Samples: Purchase and Sale Agreement (BioMed Realty Trust Inc)
Due Diligence. Purchaser (i) The Buyer shall have the right, at the Buyer’s sole cost and its representatives shall be permitted expense, during the period commencing on the Effective Date and ending at 11:59 p.m. (eastern time) on the date that is thirty (30) days after the Effective Date (such 30-day period being referred to as the “Due Diligence Period”), to enter upon the Property at in order to perform such tests, inspections and investigations (collectively, the “Inspections”) as the Buyer reasonably deems necessary in order to evaluate the status and condition of the Property, all subject to the terms of this Paragraph 5. Notwithstanding the foregoing, however, in no event shall the Buyer undertake, cause or permit a Phase II site investigation or any reasonable time and from time to time before the Closing Date to examinedrilling, inspect and investigate the Property as well as all records and boring or other documentation provided by Seller intrusive 4888-3897-1619, v. 10 sampling or located testing at the Property (collectivelywithout the Seller’s prior written consent in the Seller’s sole and absolute discretion. In connection with the Buyer’s entry onto the Property and/or the performance of the Buyer’s Inspections, "Due Diligence")the Buyer shall comply, and shall cause each of the Buyer’s representatives, consultants and contractors to comply, with all applicable laws and ordinances. The Due Diligence All Inspections shall be performed during normal business hours upon reasonable prior notice to the Seller, and the Seller’s representative(s) shall have the right to accompany the Buyer during the performance of all Inspections. All Inspections shall be subject to the termsrights of the Seller, conditions and limitations set forth the Buyer shall ensure that the performance of the Inspections does not interfere with the use and enjoyment of the Property by the Seller. In no event shall the Buyer permit any LSRP to access the Property or any information related thereto or to conduct any Inspections, in this Section 3.2.
(a) Purchaser each case prior to the Closing, without the Seller’s prior written consent, which may be withheld in the Seller’s sole and absolute discretion. All costs and expenses in connection with the Buyer’s Inspections shall have a right be paid by the Buyer. The Buyer acknowledges and agrees that the permission to enter upon the Property granted herein is a revocable license, and that the Seller makes no representation or warranty concerning the condition of the Property except as otherwise specifically and expressly stated herein. The Seller shall reasonably cooperate with the Buyer in connection with the Buyer’s Inspections, all at no cost, risk or liability to the Seller. However, in no event shall the Seller have any obligation to repair or remediate any condition, or be responsible for the purpose cost of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter repairing or remediating any condition, at the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (including any condition revealed by the Inspections).
(ii) Within ten (10) days after the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with hereof, the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon make available to the Buyer all records, reports, files, governmental permits and approvals, title and survey documents and other materials relating to the Property for conducting its Due Diligencethat are in the Seller’s possession and control. Purchaser shall take all necessary actions to insure that neither it nor The Seller makes no representations or warranties whatsoever, and expressly disclaims any representations and warranties, regarding the accuracy or completeness of any of its representatives interfere with such materials provided to the tenants or ongoing operations occurring at Buyer, and the Property. Purchaser Buyer acknowledges and agrees that the Buyer shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed have no recourse whatsoever against the Property as a result Seller or the Seller’s contractors, agents, consultants or counsel with respect to or in connection with any such materials; provided however that the Seller hereby represents and warrants that the materials provided by the Seller to the Buyer are true and correct copies of its Due Diligencethe materials in the Seller’s possession.
(b) Purchaser Prior to entry onto the Property to perform Inspections or otherwise, the Buyer shall have through the last day provide, and shall cause each of the Due Diligence Period Buyer’s agents and contractors to provide, the Seller with a certificate of insurance (with respect to comprehensive general liability insurance, professional liability insurance (if applicable), contractor’s pollution liability insurance (if applicable), worker’s statutory compensation insurance, and automobile insurance) naming the Seller as an additional insured (other than professional liability insurance), along with proof of endorsement authorizing the Seller to be named as an additional insured. The comprehensive general liability policy shall be in which to conduct its Due Diligence andthe amount of $1,000,000.00 per occurrence with excess umbrella coverage in excess of $2,000,000, and the contractor’s pollution liability policy shall be in Purchaser's sole discretionthe amount of $1,000,000.00 per occurrence. All other insurance shall be in commercially reasonable amounts, to determine whether the Property is and all insurance shall be written by such insurance carriers, and on such other terms, as shall be reasonably acceptable to Purchaserthe Seller. If during the Due Diligence Period4888-3897-1619, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.v. 10
(c) Purchaser shallThe Buyer assumes all risks with respect to any personal property, at least thirty-one (31) days equipment or vehicles used by the Buyer or the Buyer’s agents, representatives, consultants or contractors in connection with the Inspections. The Buyer shall and hereby does indemnify, defend and hold harmless the Seller from and against any and all loss, cost or damage relating to any injury, death, property damage or other matter resulting from, arising out of or related to the entry onto the Property by the Buyer or the Buyer’s agents or representatives prior to the Closing Date, notify Seller or the performance by the Buyer of any of the Inspections. The existence or non-existence of any insurance coverage shall not affect in writing requesting any way the indemnification obligations of the Buyer set forth in the preceding sentence. The provisions of this subparagraph shall survive the Closing or earlier termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinthis Agreement.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminatedterminated for any reason, this subsection 3.2(e) the Buyer shall survive termination.
(f) Purchaser agrees promptly deliver to indemnifythe Seller, defend and hold Seller and its partnersat no cost to the Seller, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against copies of any and all claimsthird party inspection reports, losses, damages, costs results and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of analyses which were the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating basis for the Buyer’s decision to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in terminate this Agreement. In the event that the Property is disturbed or altered Buyer’s decision to terminate this Agreement was not based upon information contained in any way as a result of such activitiesthird party inspection reports, Purchaser results or analyses, the Buyer shall promptly deliver any such inspection reports, results and analyses requested in writing by the Seller. As a condition to providing any of the foregoing third party reports, results, and analyses, Seller shall reimburse the Buyer for the actual cost thereof, and Seller hereby acknowledge and agrees that Xxxxxx accepts such reports, results and analysis without any reliance on the content therein, without recourse to Buyer and without representation or warranty of any kind. The provisions of this subparagraph shall survive the Closing or earlier termination of this Agreement.
(e) The Buyer shall keep all materials or information provided or made available by the Seller to the Buyer and all materials obtained or developed by or for the Buyer pursuant to the Buyer’s Inspections strictly confidential, and shall not (except as specifically required by applicable law, regulation or legal process) disclose same to any person, entity or party other than to the Buyer’s own members, officers, directors, employees, attorneys, accountant, consultants, advisors, insurance brokers and lenders, for the sole purpose of evaluating this transaction (and then only if the Buyer causes all such persons to comply strictly with the confidentiality provisions hereof). The provisions of this subparagraph shall survive the termination of this Agreement.
(i) The Buyer shall have the right to terminate this Agreement for any reason or no reason at all by delivering written notice of termination to the Seller (a “Due Diligence Termination Notice”) prior to the expiration of the Due Diligence Period, which notice may be delivered by electronic mail to Seller or its attorney. In such event, (A) the Buyer shall, at the Buyer’s sole cost and expense, restore the Property to its condition existing immediately prior to any changes in the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or condition as a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy result of the certificate Inspections, which obligation shall survive the termination of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (B) upon such restoration of the Property, the Balance of the Deposit shall be refunded to the Buyer as provided in Paragraph 2 hereof, and (C) thereafter neither party shall have any further rights or obligations hereunder except as otherwise expressly provided herein. 4888-3897-1619, v. 10
(ii) communications between If the Buyer shall fail for any reason to validly and timely deliver a Due Diligence Termination Notice to the Seller prior to the expiration of the Due Diligence Period, the Buyer shall be deemed to have irrevocably waived the right to terminate this Agreement pursuant to this Paragraph 5 and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations to have accepted the condition of the Property in all respects, subject to the possession terms of this Agreement. In such event, the Balance of the Deposit shall thereupon automatically become nonrefundable in all events (except in the case of a Seller default as provided in Paragraph 21(b) hereof or HCMCotherwise set forth herein) and shall be released from escrow by the Escrow Agent and paid and disbursed to the Seller as provided in Paragraph 2 hereof, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions the Buyer shall proceed to Closing in this Agreement which expressly survive Closing or termination accordance with the terms of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Commvault Systems Inc)
Due Diligence. (a) Purchaser acknowledges that it has been given the opportunity to conduct and complete its representatives review, due diligence and inspection of the Premises, during a period of time (the “Due Diligence Period”) which commenced prior to the date hereof and ended on the date hereof and agrees that it shall not have the right to terminate this Agreement and be permitted entitled to enter upon the return of the Deposit because of anything relating to the condition of the Property at or any reasonable time and from time additional information relating to time before the Closing Date to examine, inspect and investigate the Property of which Purchaser becomes aware, whether as well a result of additional due diligence or otherwise, except as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations otherwise expressly set forth in this Agreement. Subject to the provisions of Section 3.2.
2(b), Purchaser and its agents, employees, consultants, inspectors, appraisers, engineers and contractors (acollectively referred to as the “Purchaser’s Representatives”) Purchaser shall have a right the right, through the Closing Date, from time to time, upon the advance notice required pursuant to Section 2(b), to enter upon and pass through the Property for Premises during normal business hours to examine and inspect the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesame.
(b) In conducting any inspection of the Premises or additional due diligence review (it being understood and agreed that except as expressly set forth in this Agreement, nothing raised, disclosed or reflected during such additional review shall give Purchaser any additional rights hereunder, including, without limitation, the right to terminate this Agreement), neither Purchaser nor any of Purchaser’s Representatives shall: (a) contact or have any discussions with any of Seller’s employees, agents or representatives, or with any tenants at, or contractors providing services to, the Premises, unless in each case Purchaser obtains the prior consent of Seller, (b) interfere with the business of Seller conducted at the Premises or any tenant therein or the equipment or services located thereat, (c) damage the Premises or any portion thereof or (d) conduct any physical or invasive test or procedure on or at the Premises. In conducting the foregoing inspection, Purchaser and Purchaser’s Representatives shall at all times comply with, and shall be subject to, all other terms, covenants and conditions of this Agreement. Seller may from time to time establish reasonable rules of conduct for Purchaser and Purchaser’s Representatives in furtherance of the foregoing. Purchaser shall schedule and coordinate all inspections with Seller and shall give Seller at least two (2) business days’ prior notice thereof. Seller shall be entitled to have through the last day of the Due Diligence Period in which a representative present at all times during each such inspection. Purchaser agrees to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination pay to Seller on demand the cost of repairing and restoring any damage or before disturbance, which Purchaser or Purchaser’s Representatives shall cause to the last day Premises or any portion thereof. All inspection fees, appraisal fees, engineering fees and other costs and expenses of any kind incurred by Purchaser or Purchaser’s Representatives relating to such inspection of the Due Diligence Period. If Purchaser does not timely deliver Premises and its other due diligence shall be at the Xxxxxxx Money, this Agreement shall automatically terminatesole expense of Purchaser. In the event that the Closing hereunder shall not occur for any reason (other than a default on the part of such terminationSeller), neither party Purchaser shall have deliver to Seller, at no cost to Seller and without representation or warranty, copies of all tests, reports and inspections of the Premises made and conducted by Purchaser or Purchaser’s Representatives or for Purchaser’s benefit which are in the possession or control of Purchaser or Purchaser’s Representatives. Without limiting the foregoing, Purchaser and Purchaser’s Representatives shall not be permitted to conduct borings of the Premises or drilling in or on the Premises. For purposes of this Agreement, “business days” shall mean every day other than Saturdays, Sundays, all days observed by the federal or New York State governments as legal holidays and all days on which commercial banks in New York State are required to be closed. The provisions of this Section 2(b) shall survive the Closing or any further obligations to the other party hereunder, except for the Surviving Obligationstermination of this Agreement.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend indemnify and hold Seller and its direct and indirect shareholders, officers, directors, partners, trustees, beneficiaries, shareholdersprincipals, members, managers, advisors and other agents and their respective employees, officersagents, directors contractors, and shareholders any successors or assigns of the foregoing (collectively, with Seller, the "Indemnified “Seller Related Parties"”) harmless from and against any and all claimslosses, lossescosts, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and liabilities or expenses (including, without limitationbut not limited to, reasonable attorneys' fees and ’ fees, court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").costs and
Appears in 1 contract
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before during the Closing Date Due Diligence Period to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.23.2 and Purchaser's conduct thereof shall be in strict compliance with its covenants and agreements contained herein.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 forty-eight (48) hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure ensure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through until the last day expiration of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence PeriodPurchaser may, Purchaser becomes aware of for any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaserno reason, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day expiration of the Due Diligence Period. If Purchaser does not timely deliver give notice of termination as aforesaid, Purchaser shall be deemed to have elected to purchase the Xxxxxxx MoneyProperty in accordance with the terms and conditions of this Agreement, the condition precedent set forth in this Section 3.2(b) shall be deemed satisfied and this Agreement shall automatically terminatecontinue in full force and effect. In the event of such termination, the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) During the Due Diligence Period, Purchaser shall, at least thirty-one (31) days prior to the Closing Date, shall notify Seller in writing requesting termination of any or all of the terminable Service Contracts that Purchaser wishes to terminate (the "Terminated Service Contracts"). Following the expiration of the Due Diligence Period, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect Seller shall send termination notices to assume. If Purchaser does not timely give notice requesting termination the service providers of a the Terminated Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service ContractContracts. Purchaser shall assume all other (i) the Terminated Service Contracts in for any period between the manner provided hereinClosing Date and the date of termination of the Terminated Service Contracts and (ii) all Service Contracts listed on Schedule 2 other than the Terminated Service Contracts. Any termination fees due with respect to the Terminated Service Contracts shall be payable by Purchaser.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any sampling, boring, drilling or other physically intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)into the structures or ground comprising the Property, including, without limitation, a Phase II environmental assessment or boringassessment, without (i) submitting to Seller the scope and inspections specifications for such testing; and (ii) obtaining the prior written consent of SellerSeller for such testing, which consent shall not be unreasonably withheld, denied or delayed, except in connection with ground water testing, in which case Seller may withhold its consent in its sole and absolute discretion.
(e) Prior to Closing, Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationPurchaser agrees that all such information will continue to be held in strict confidence.
(f) Purchaser agrees to indemnify, protect, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective partners, trustees, beneficiaries, employees, officers, directors and shareholders (collectively, the "Indemnified Parties") harmless from and against any and all liabilities, demands, actions, causes of action, suits, claims, losses, damages, costs and expense expenses (including, without limitation, reasonable attorneys' fees fees, court costs and court costslitigation expenses) suffered or incurred by any of the Indemnified Parties as a result of or in connection with any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activitiesactivities in connection therewith and LIABILITIES, and in DEMANDS, ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES, DAMAGES, COSTS AND EXPENSES CAUSED BY OR IN ANY WAY CONTRIBUTED TO BY THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES. In the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any Due Diligence to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Two Million and 00/100 Dollars ($1,000,000.002,000,000.00) per occurrence for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx , (ii) UPV Corporation and Heitman Capital Management Corporation LLC ("HCMCHCM") and Xxxxxxx Properties of Florida Ltd. named as additional insuredsinsured parties, and (iii) waiver of subrogation. Purchaser shall deliver to Seller a copy of the certificate certificates of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate certificates shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller or an affiliate of Seller in connection with (A) this Agreement or in connection with Agreement, (B) the transaction contemplated by this Agreement, or (C) the acquisition of the Property by Seller (other than environmental reports, if any), (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above)HCM, and (iii) appraisals, assessments appraisals or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsHCM.
(h) Purchaser agrees and covenants with Seller not to conduct or cause to be conducted any written or oral communications with any tenant regarding renegotiating current lease terms or renewal lease terms.
(i) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement designated as surviving shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement (Glimcher Realty Trust)
Due Diligence. Purchaser From the Effective Date until 5:00 p.m. PDT on the date that is twenty-one days following the Effective Date (the “Inspection Period”), Seller shall allow Buyer and its representatives their respective agents, consultants and prospective tenants access to the Property upon reasonable notice, and upon execution by such party and delivery to Seller of an Access Agreement in the form previously delivered to Buyer, for the purposes of conducting non-invasive surveys, tests, and inspections, provided that they shall be permitted conducted in such a manner as not to enter upon unreasonably interfere with normal business operations on the Property. Such inspections may include, without implied limitation, inspections and investigations relating to the general building, the sewage disposal system, the water and water distribution systems, the heating and air conditioning systems, power distribution and backup power systems, roof, and foundation. All inspections and investigations shall be conducted at Buyer’s cost. All inspections and investigations shall be conducted by qualified professionals in accordance with applicable legal requirements. After its inspections are completed, Buyer, at Buyer’s sole cost and expense, shall promptly restore the Property at to its prior condition. Buyer agrees to indemnify and hold Seller harmless from all liability, loss, cost, damage or expense arising from the conduct of any reasonable time and such survey, test, or inspection by Buyer or Buyer’s agents or contractors, except such as may result from time to time before the Closing Date to examine, inspect and investigate mere discovery of existing conditions on the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence")Property. The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance Buyer also (i) Purchaser notifies shall not contact any governmental agencies without the prior written consent of Seller (provided that Buyer shall be entitled to contact governmental agencies, without the consent of its intent to enter Seller, for the Property to conduct its Due Diligence not less than 48 hours prior to such entrysole purpose of confirming the zoning or land-use status of the Property); (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, shall permit a representative of Seller shall be present during to accompany Buyer on any entry by Purchaser interviews with governmental agencies (except as provided in the parenthetical in the preceding clause (i)) or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any on other inspections of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser ; (iii) shall not cause or permit any mechanic inspections, investigations or other due diligence activities to result in any liens, materialmen's liens judgments or other liens to be encumbrances being filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser and shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, promptly discharge of record any inspectionssuch liens or encumbrances that are so filed or recorded; (iv) shall not permit any borings, studies drillings or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling samplings to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller; (v) shall maintain, with insurance companies satisfactory to Seller, a policy of comprehensive general public liability insurance, with a broad form contractual liability endorsement covering Buyer’s indemnification obligations hereunder, and with a combined single limit of not less than $2,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the amount of $5,000,000, insuring Seller and its affiliates as additional insureds (certificates of which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with given to Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to first entry on the Property or Seller in any wayProperty), all of which insurance shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information written on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, an “occurrence form”; and (iiivi) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior all materials with respect to the commencement Property if Buyer fails to acquire the Property for any reason. The provisions of such activities which certificate this Section shall provide that such insurance shall not be terminated survive the termination of this Agreement. Seller has previously provided to Buyer or modified without has made and will continue to make available at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to the Property at any time on or after the Effective Date, for review or inspect any of by the following: Buyer, (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, Seller’s Owner’s Title Insurance Policy; (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), Seller’s Current Preliminary Title Report; (iii) appraisalsALTA Survey, assessments or other valuations of the Property in the possession of Seller or HCMCprepared by DCA Civil Engineering Group dated February 20, and 2004; (iv) management agreements.
Seller’s Phase I Environmental Report; and (hv) Sections 3.2(eSeller’s Infrastructure Equipment List as well as the items listed on Exhibit B attached hereto and made a part hereof (items (i)-(v) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (those items listed on Exhibit B herein collectively, the "Surviving Obligations"“Due Diligence Materials”).
Appears in 1 contract
Samples: Purchase and Sale Agreement
Due Diligence. (a) Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals subject, for the avoidance of doubt, to the limitation on reimbursement for appraisals set forth in Article 28(e)) the Borrowers (including any other obligors), the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days upon reasonable 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Purchaser and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter identified by Purchaser in writing in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with reasonable access in accordance with the terms hereof to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof reasonably requested by Purchaser in writing.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders reimburse Purchaser within ten (the "Indemnified Parties"10) harmless from and against Business Days after receipt of an invoice thereof for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from incurred by Purchaser in connection with its continuing due diligence activities pursuant to this Article 28. provided that, so long as no Event of Default has occurred and is continuing and the mere discovery of information on or related Purchased Asset is not a condition at the Property. FurthermoreDefaulted Asset, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated required to reimburse the cost of an updated or modified without at least thirty new appraisal obtained pursuant to this Article 28 if an existing appraisal that is acceptable to Purchaser is less than twelve (3012) days' prior written notice to Sellermonths old.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (TPG RE Finance Trust, Inc.)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due DiligenceDUE DILIGENCE"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a1) Purchaser shall have a the right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f3.2(e) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic mechanic's liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b2) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole and absolute discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines determines, in its sole and absolute discretion, makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver give notice of termination as aforesaid, Purchaser shall be deemed to have accepted the Xxxxxxx Money, Property and this Agreement shall automatically terminatecontinue in full force and effect. In the event of such termination, the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d3) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, ; provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)testing, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e4) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser believes in good faith that Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, Purchaser agrees that all such information will be held in strict confidence, subject to the disclosures that Purchaser has made (or has a right to make) pursuant to the previous sentence. In the event that the sale hereunder is consummated, the prohibition on the Purchaser's disclosure of information as set forth in this subsection 3.2(eSection 3.2(d) shall survive terminationbe of no further force or effect. Seller shall not disclose to any third party (other than lenders, accountants, attorneys and other professionals in connection with the transaction contemplated herein) the existence or terms of this Agreement without Purchaser's prior written consent, unless Seller believes in good faith that Seller is obligated by law to make such disclosure.
(f5) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Purchaser Indemnified Parties") Parties harmless from and against any and all claims, losses, damages, costs and expense expenses (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Purchaser Indemnified Parties as a result of or in connection with any damage to property or injury to persons or any mechanic's lien, which damage or injury or lien arises from any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, ; and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb disturbed or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at altered the Property. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any Due Diligence to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Three Million and 00/100 ($1,000,000.003,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx the Purchaser Indemnified Parties and Heitman Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insuredsinsured parties. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g6) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above)HCMC, and (iii) appraisals, financial assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h7) Sections 3.2(e3.2(d) and 3.2(f3.2(e) and such other designated provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Membership Interest (Urban Shopping Centers Inc)
Due Diligence. (a) Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets, the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise (but not so long as an Event of Default has not occurred and is not continuing more than two (2) times during any twelve (12) consecutive month period). Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligencesuch party. Purchaser shall take all necessary actions act in a commercially reasonable manner in requesting and conducting any inspection relating to insure that neither it nor any the conduct and operation of its representatives interfere with Seller’s business related to the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due DiligencePurchased Assets.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance with Article 27(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 27(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to cooperate with Purchaser and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' the fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermoreincurred by Purchaser in connection with its due diligence activities pursuant to this Article 27; provided, Purchaser agrees to maintain and have in effect workers' compensation insurancehowever, with statutory limits of coveragethat, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement occurrence of such activities which certificate an Event of Default, Purchaser shall provide notice to Seller prior to incurring any such costs and expenses in excess of $10,000 with respect to any Purchased Asset (provided, for avoidance of doubt, that such insurance the foregoing shall not be terminated or modified without at least thirty (30) days' prior written notice limit Seller’s obligations to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and pay such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations"amounts).
Appears in 1 contract
Samples: Master Repurchase Agreement (Fortress Credit Realty Income Trust)
Due Diligence. Purchaser Due to the complexity of the proposed transactions and its representatives the Debtor’s duty to maximize recoveries from the Sale, the Debtor shall be permitted deliver the Sale Motion to enter upon all parties who are known to have expressed an interest in acquiring the Property at Assets and any reasonable time and from time to time before other entity that requests service of the Closing Date to examine, inspect and investigate Sale Motion (the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"“Potential Bidders”). The Due Diligence shall be subject Sale Motion will invite all Potential Bidders to participate in the terms, conditions Sale. The Debtor may afford any Potential Bidder the time and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property opportunity to conduct reasonable due diligence; provided such Potential Bidder enters into a confidentiality agreement (the “Confidentiality Agreement”) limiting its Due Diligence not less than 48 hours prior to use of such entry; (ii) the date information and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence anddemonstrates sufficient financial wherewithal, in Purchaser's sole the Debtor’s discretion, to determine whether consummate the Property is acceptable to PurchaserSale. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser Any Potential Bidder may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller obtain a copy of the certificate Confidentiality Agreement from Gleacher & Company (“Gleacher”), the Debtor’s financial advisor. Gleacher and the Debtor may, on their own initiative, also send a copy of insurance effectuating the insurance Confidentiality Agreement to those parties who have not yet executed one but whom Gleacher or the Debtor has identified as being likely to be interested in making an offer to purchase the Assets and participating in the Auction. Thereafter, the Debtor and Gleacher shall entertain any further reasonable requests for additional information and due diligence from any party who has executed the Confidentiality Agreement and provided the required hereunder prior satisfactory evidence of financial wherewithal. The Debtor, in its discretion, may deny any such requests for additional information, if, after taking into account, among other things, business factors (such as whether or not the Potential Purchaser is currently a competitor of the Debtor), legal, regulatory, and other considerations, it determines that doing so would not be in the best interests of its estate and creditors or is otherwise contrary to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any goals of the following: (i) internal memorandaAuction and the Sale. If any due diligence material has not previously been provided to the Purchaser, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with then the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of Debtor shall simultaneously provide such material to the Property in the possession of Seller or HCMC, and (iv) management agreementsPurchaser.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Asset Purchase Agreement (MiddleBrook Pharmaceuticals, Inc.)
Due Diligence. (a) Seller acknowledges that Purchaser, at reasonable times and upon reasonable notice to Seller, Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals not to exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and is continuing); provided 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 Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Xxxxxx agrees to cooperate with Xxxxxxxxx and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs reasonable and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, documented out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. 3.1.1 Subject to the terms of the “Access Agreement” (as defined below), Assignor shall make available to Purchaser and its representatives shall be permitted all information pertaining to enter upon the Property at any reasonable time obtained by Assignor pursuant to the Purchase Agreement and from time shall use diligent efforts to time before cause Purchaser to have the Closing Date same access to examine, inspect the Property and investigate all the information of Seller relating to the Property as well as all records and other documentation provided by Assignor is entitled to pursuant to the Purchase Agreement, excluding, however, any information that is privileged, confidential or proprietary to either Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2Assignor or any of their respective Affiliates.
(a) 3.1.2 Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided has advised Assignor that in each such instance (i) order for Purchaser notifies Seller of its intent to enter consummate the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day assignment of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether Purchase Agreement and the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition acquisition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling must cause to be done as part prepared up to three (3) years of Purchaser's Phase I site assessment)audited financial statements in respect of the Property in compliance with the policies of Purchaser and certain laws and regulations, including, without limitation, a Phase II environmental assessment or boringSecurities and Exchange Commission Regulation S-X. Assignor agrees to: (a) prior to the Acquisition Closing Date, without (i) submitting use commercially reasonable efforts to cooperate with Purchaser to cause Seller to cooperate with Purchaser’s auditors pursuant to the scope and inspections for terms of Section 4.2.2 of the Purchase Agreement in the preparation of such testingaudited financial statements; and (iib) obtaining if Assignor acquires the prior written consent Property, to perform the same obligations under Section 4.2.2 of Sellerthe Purchase Agreement as if Assignor were Seller (it being understood and agreed that the foregoing covenants under clauses (a) and (b) shall survive the Assignment Closing for a period of one (1) year). Notwithstanding the foregoing, which consent (x) in no event shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not Assignor have any obligation to disclose institute legal proceedings or to expend any third party (other than lenders, accountants, attorneys and other professionals and consultants monies in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consentits obligations under this Section 3.1.2, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(fy) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, shall reimburse Assignor for Assignor’s out-of-pocket costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMCSection 3.1.2, and (ivz) management agreements.
in no event shall Assignor be obligated to provide or make available any Excluded Materials (h) Sections 3.2(e) and 3.2(f) and such other provisions as defined in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations"Purchase Agreement).
Appears in 1 contract
Samples: Assignment Agreement (Behringer Harvard Reit I Inc)
Due Diligence. Purchaser RCBA shall be fully satisfied in its sole ------------- discretion with the results of its review of, and its representatives due diligence investigations with respect to, the business, operations, affairs, prospects, properties, assets, existing and potential liabilities, obligations, profits and conditions (financial or otherwise) of Seller (including Exhibit 1.21 and the Perini Disclosure Schedule). RCBA shall be permitted deemed to enter upon be so satisfied unless it notifies Seller in writing at or prior to the Property at any expiration of the forty-five day period provided in this Section that RCBA is terminating this Agreement because it is not so satisfied. For forty-five (45) days after the date on which this Agreement is entered into, Seller shall (and shall cause each of the Subsidiaries to) cooperate promptly and fully with RCBA or Purchaser's officers, employees, counsel, accountants and other authorized representatives ("Representatives") and shall afford such Representatives reasonable time access during normal business hours to all of its (1) sites, properties, books, contracts and records and personnel and advisers (who will be instructed by Seller to cooperate) and (2) such additional financial and operating data and other information as to its business and properties as RCBA may from time to time before the Closing Date to examinereasonably request, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, including without limitation, a Phase II environmental assessment or boringaccess upon reasonable request to Seller's Representatives, without (i) submitting to Seller the scope major customers, vendors, suppliers and inspections creditors for such testing; due diligence inquiry and (ii3) obtaining Seller shall (and shall cause each of the prior written consent Subsidiaries to) furnish promptly to RCBA or Purchaser all information concerning its business, properties and personnel as RCBA or Purchaser or their Representatives may reasonably request during this 45-day period, provided that any review will be conducted in a way that will not interfere unreasonably with the conduct of Seller, which consent shall not be unreasonably withheld's business. RCBA and Purchaser will keep all information and documents obtained pursuant to this Section 3.8 on a confidential basis subject to Section 7.17.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Union Labor Life Insurance Co)
Due Diligence. Purchaser At all times prior to the Closing (or such earlier date on which this Agreement is terminated in accordance with Section 8.1), WEDGE Oil & Gas and WEDGE Energy shall (and shall cause the Acquired Companies to) permit Pioneer and its employees, accountants, legal counsel and other representatives (collectively, the “Pioneer Representatives”) to have access at all reasonable times to such premises, properties, books, records, Contracts, Tax records or documents of or pertaining to the Business or any Acquired Company as is reasonably requested by Pioneer. All information given to or acquired by Pioneer and its representatives shall be permitted to enter upon in connection with the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided due diligence investigations contemplated by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence this Section 6.5 shall be subject to the terms, conditions and limitations confidentiality provisions set forth in the Non-Disclosure Agreement. Notwithstanding anything in this Agreement to the contrary, all investigation by Pioneer and the Pioneer Representatives pursuant to this Section 3.2.6.5 shall be subject to the following:
(a) Purchaser the due diligence investigations contemplated by this Section 6.5 shall be completed on or before February 15, 2008 and thereafter Pioneer and its representatives shall have a right no further access to enter upon the Property for personnel, customers, premises, properties, books, records, Contracts, Tax records, and documents of or pertaining to the purpose of conducting its Due Diligence provided that in each such instance Business or any Acquired Company, except (i) Purchaser notifies Seller of its intent to enter the Property extent that Xxxxx X. Xxxxxxx consents to conduct its Due Diligence not less than 48 hours prior to any such entry; investigations following such date and (ii) that the date Sellers shall provide the information required by Section 6.4 and approximate time period are scheduled with Seller; and (iii) Purchaser is any other information specifically requested in full compliance writing by Pioneer’s lenders in connection with the insurance requirements set forth in financing contemplated by Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.7.1(g);
(b) Purchaser the due diligence investigations contemplated by this Section 6.5 shall have through be conducted in such a manner as to cause the last day least possible interference with the normal business operations of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.Acquired Companies;
(c) Purchaser shall, at least thirty-one (31) days prior all requests for access to the Closing Datepremises, notify Seller in writing requesting termination of any or all of the Service properties, books, records, Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect Tax records and documents of or pertaining to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser the Business or any Acquired Company shall be deemed made to have accepted the assumption of Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xx. or Xxxxxxx Xxxxxx, who shall be solely responsible for coordinating all such Service Contract. Purchaser shall assume requests and all other Service Contracts in the manner provided herein.access permitted hereunder;
(d) Purchaser shall have the right to conduct, at its sole cost and expense, neither Pioneer nor any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without Pioneer Representatives shall communicate with (i) submitting to Seller any customers of the scope and inspections for such testing; and (ii) obtaining Business without the prior written consent of SellerXxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxx, which Xx. or (ii) any personnel of the Business without the prior consent shall not be unreasonably withheldof Xxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxx, Xx.;
(e) Purchaser agrees WEDGE Oil & Gas and covenants WEDGE Energy shall not be obligated to provide Pioneer or the Pioneer Representatives access to (i) any information that is subject to a valid and binding confidentiality agreement with Seller not to disclose to any a third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make that prohibits such disclosure, which restricted information is described generally in Annex A or (ii) any of the reports or any other documentation or information obtained that is prohibited from disclosure by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.applicable privacy Laws;
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against Pioneer shall not conduct any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result environmental sampling of any activities of Purchaser (including activities assets of any of Purchaser's employees, consultants, contractors or other agents) relating to Acquired Company without the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.approval of WEDGE Oil & Gas and WEDGE Energy;
(g) Purchaser acknowledges Pioneer and agrees that it the Pioneer Representatives shall have no right to review comply fully with all rules, regulations, policies and instructions issued by the Acquired Companies regarding all due diligence activities while upon, entering or inspect leaving any property of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.Acquired Companies; and
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectivelyPIONEER AND THE PIONEER REPRESENTATIVES HEREBY RELEASE THE SELLERS AND THE ACQUIRED COMPANIES FROM ANY CLAIM ARISING OUT OF OR RELATED TO DUE DILIGENCE ACTIVITIES BY OR ON BEHALF OF PIONEER, the "Surviving Obligations")INCLUDING ANY CLAIM ARISING OUT OF THE SELLERS’ OR THE ACQUIRED COMPANIES’ NEGLIGENCE. PIONEER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD THE SELLERS AND THE ACQUIRED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES INCURRED BY OR ASSERTED AGAINST ANY SUCH PERSON ARISING OUT OF OR RELATING TO THE DUE DILIGENCE ACTIVITIES CONDUCTED BY PIONEER OR THE PIONEER REPRESENTATIVES PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT.
Appears in 1 contract
Samples: Securities Purchase Agreement (Pioneer Drilling Co)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property Property, including tenant, governmental, and regulatory research and interviews (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.23.2 and Purchaser's conduct thereof shall be in strict compliance with its covenants and agreements contained herein.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 forty-eight (48) hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure ensure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence PeriodPurchaser may, Purchaser becomes aware of for any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaserno reason, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver give notice of termination as aforesaid, Purchaser shall be deemed to have elected to purchase the Xxxxxxx Money, Property in accordance with the terms and conditions of this Agreement and this Agreement shall automatically terminatecontinue in full force and effect. In the event of such termination, the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinlisted on Schedule 2.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)testing, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of SellerSeller for such testing, which consent shall not be unreasonably withheld, denied or delayed, except in connection with ground water testing, in which case Seller may withhold its consent in its sole and absolute discretion.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and that all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and information will be held in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Sellerstrict confidence.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement (CBL & Associates Properties Inc)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a1) Purchaser shall have a the right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f3.2(e) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic mechanic's liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b2) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole and absolute discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines determines, in its sole and absolute discretion, makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver give notice of termination as aforesaid, Purchaser shall be deemed to have accepted the Xxxxxxx Money, Property and this Agreement shall automatically terminatecontinue in full force and effect. In the event of such termination, the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d3) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, ; provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)testing, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e4) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser believes in good faith that Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, Purchaser agrees that all such information will be held in strict confidence, subject to the disclosures that Purchaser has made (or has a right to make) pursuant to the previous sentence. In the event that the sale hereunder is consummated, the prohibition on the Purchaser's disclosure of information as set forth in this subsection 3.2(eSection 3.2(d) shall survive terminationbe of no further force or effect. Seller shall not disclose to any third party (other than lenders, accountants, attorneys and other professionals in connection with the transaction contemplated herein) the existence or terms of this Agreement without Purchaser's prior written consent, unless Seller believes in good faith that Seller is obligated by law to make such disclosure.
(f5) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Purchaser Indemnified Parties") Parties harmless from and against any and all claims, losses, damages, costs and expense expenses (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Purchaser Indemnified Parties as a result of or in connection with any damage to property or injury to persons or any mechanic's lien, which damage or injury or lien arises from any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, ; and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb disturbed or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at altered the Property. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any Due Diligence to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Three Million and 00/100 ($1,000,000.003,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx the Purchaser Indemnified Parties and Heitman Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insuredsinsured parties. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g6) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above)HCMC, and (iii) appraisals, financial assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h7) Sections 3.2(e3.2(d) and 3.2(f3.2(e) and such other designated provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Partnership Interest (Urban Shopping Centers Inc)
Due Diligence. Purchaser Prior to the Closing, Sellers and Greenwich shall afford to Buyer, its employees, accountants, counsel and other representatives shall be permitted full access to enter upon (a) all of the Property at any reasonable time and from time to time before the Closing Date to examineAssets, inspect and investigate the Property as well as all books, Contracts, commitments, records and other documentation provided by Seller or located at the Property (collectivelydocument of Greenwich, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence andall books, in Purchaser's sole discretioncontracts, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Periodcommitments, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys records and other professionals documents of Sellers that are reasonably necessary for Buyer to evaluate and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with undertake the transaction contemplated by this Agreement. Sellers and Greenwich shall, (ii) communications between Seller prior to Closing, furnish promptly to Buyer all other information concerning the business, Assets, records and HCMC (except Facility Employees as Buyer may be listed reasonably request for such purpose. In connection with such due diligence, as well as Buyer's participation in paragraph 3.1 above), (iii) appraisals, assessments or other valuations the operation of the Property Steering Committee and its management of the Assets (including the Facility) Buyer will, as of Closing, have performed a comprehensive due diligence investigation of the Assets and obtained a thorough understanding of the operation of the Assets. In the course of these activities, nothing has come to the attention of Buyer as of the Signing (that Sellers do not have actual knowledge of) that there is a material inaccuracy in any representation or warranty of Sellers contained herein and Buyer shall disclose to Sellers any such findings between Signing and Closing (that Sellers do not have actual knowledge of). Provided that Buyer has not breached the possession of Seller or HCMC, representation and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions warranty set forth above in this Agreement which expressly survive Section 5.6, no investigation conducted pursuant to this Section 5.6 or prior to the Closing shall be deemed to modify any representation or termination of this Agreement shall survive Closing warranty made by Sellers or Greenwich herein or any termination obligation of this Agreement (collectively, the "Surviving Obligations")Sellers or Greenwich hereunder.
Appears in 1 contract
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.23.2 and Purchaser's conduct thereof shall be in strict compliance with its covenants and agreements contained herein.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 forty-eight (48) hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; , and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure ensure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have have, through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence PeriodPurchaser may, Purchaser becomes aware of for any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaserno reason, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. On or before the expiration of the Due Diligence Period, Purchaser shall deliver to Seller a written notice indicating whether it will proceed with the transaction. If Purchaser does not timely deliver give notice of termination as aforesaid, Purchaser shall be deemed to have elected to purchase the Xxxxxxx Money, Property in accordance with the terms and conditions of this Agreement and this Agreement shall automatically terminatecontinue in full force and effect. In the event of such termination, the Xxxxxxx Money, including any interest thereon, shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall assume any or all of the Service Contracts on the Closing Date. In the event Purchaser desires to cancel any of the Service Contracts, Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service ContractContract prior to the Closing Date, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinlisted on Schedule 2.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspectionsInspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)testing, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of SellerSeller for such testing, which consent shall not be unreasonably withheld, denied or delayed, except in connection with ground water testing, in which case Seller may withhold its consent in its sole and absolute discretion.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than its affiliates, investors, lenders, accountantsemployees, agents, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, consent unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationPurchaser agrees that all such information will be held in strict confidence.
(f) Purchaser agrees to indemnify, protect, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective partners, affiliates, trustees, beneficiaries, employees, officers, directors and shareholders (collectively, the "Indemnified Parties") harmless from and against any and all liabilities, demands, actions, causes of action, suits, claims, losses, damages, costs and expense (including, including without limitation, limitation actual reasonable attorneys' attorneys fees and court costscosts and litigation expenses) made, brought, sought, suffered or incurred by any of the Indemnified Parties as a result of or in connection with any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) by reasons directly or indirectly arising out of, caused by or relating to the inspection of the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and activities in connection therewith after notice. In the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any Due Diligence to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 Dollars ($S1,000,000.00) for personal Diligence, to maintain and have in effect commercial general liability insurance with (i) limits of not less than One Million and 00/100 Dollars ($ 1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such , (ii) such insurance shall name Xxxxxxx JMB Institutional Apartment Limited Partnership-II, Heitman Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Xxxxxxx-Xxxxxx Properties, Ltd. as additional insuredsinsureds and (iii) waiver of subrogation, if available. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller or an affiliate of Seller in connection with this (A) Agreement or in connection with (B) the transaction contemplated by this Agreement, (C) the acquisition of the Property by Seller (other than environmental reports, if any) or (D) any prior or current contemplated reorganization of Seller and certain affiliated funds, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above)HCMC, and (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Purchaser agrees and covenants with Seller not to conduct or cause to be conducted any written or oral communications with any tenant regarding renegotiating current lease terms or renewal lease terms.
(i) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement designated as surviving shall survive Closing for a period of four (4) months or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apple Residential Income Trust Inc)
Due Diligence. (a) Purchaser and its agents, contractors, auditors, engineers, attorneys, employees, consultants, other representatives and potential lessees, partners, and lenders (collectively, “Purchaser Parties”) shall be permitted have the right through Closing to enter upon the Real Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours one (1) business day’s prior notice to Seller, and to perform, at Purchaser’s expense, such entry; (ii) the date economic, surveying, engineering, topographic, environmental, marketing and approximate time period are scheduled 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; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day acknowledges its receipt of the Due Diligence Period due diligence materials set forth on the Data Site as of the Effective Date. Seller shall, promptly upon request by Purchaser, make available to Purchaser on the Data Site, such additional materials which are in Seller’s possession or control relating to the Property and the operation thereof which are reasonably requested by Purchaser from time to conduct its Due Diligence time. All documents and materials provided by Seller to Purchaser as of the Effective Date and, 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 Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence PeriodArticle III, Purchaser becomes aware of any problem acknowledges and agrees that the Submission Materials are provided without warranty or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsrepresentation whatsoever.
(c) If, for any reason whatsoever (other than by reason of Seller’s default) Purchaser shalldoes not 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 Submission Materials and any other 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 shall have the right to 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, provided that such materials shall remain subject to the confidentiality requirements contained herein until such materials are deleted or destroyed), and (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 deliver to Seller any materials of a proprietary or confidential nature (such as, for the purposes of example only, any financial forecasts or market repositioning plans) prepared for Purchaser or Purchaser Parties in connection with the Property, (B) Seller acknowledges that any such materials delivered to Seller pursuant to the provisions of clause (ii) shall be without warranty or representation whatsoever, and (C) Purchaser shall not be required to return or destroy electronic copies or emailed copies which shall be retained by Purchaser in accordance with Purchaser’s corporate document retention policies and maintained in a confidential manner in accordance with the confidentiality obligations under this Agreement. The provisions of this Section 2.4(c) shall survive the termination of this Agreement.
(d) Purchaser shall indemnify, hold harmless and defend Seller, Manager, and each of their subsidiaries, affiliate and parent companies and their respective (i) officers, directors, partners, members, shareholders, employees and agents and, (ii) successors and permitted assigns (collectively, the “Seller Indemnitees”), from and against any and all Liabilities, to 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 Manager or their respective agents, contractors, auditors, engineers, attorneys, employees, consultants and other representatives or (y) caused by the mere discovery of a preexisting condition. Purchaser and Seller understand and agree that any on-site inspections of the Property shall occur at reasonable times agreed upon by Seller and Purchaser after not less than one (1) business day prior written notice to Seller and 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. 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 least thirty-one its own expense, to substantially the same condition which existed prior to such damage, ordinary wear and tear excepted; and (31ii) days 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 to be maintained), for the 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 statutory requirements, and umbrella insurance in the amount of $2,000,000. Such policy shall 39148893v.18 name Seller, Xxxxxx’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 Closing 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 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 writing requesting 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 regards 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 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 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 all 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 Service Contractsentire five (5) day period, as 39148893v.18 applicable), Purchaser may elect (1) to waive any New Objections which are noted on Schedule 2 as being terminable upon thirty Seller has elected or is deemed to have elected not to attempt to cure without any abatement in the Purchase Price, or (302) days noticeto 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, that except those which expressly survive a termination of this Agreement. In the event Purchaser does not elect provide to assume. If Purchaser does not timely give Seller notice requesting termination of a Service ContractPurchaser’s election under the preceding sentence within such five (5) day period, Purchaser shall be deemed to have accepted elected clause (1) of the assumption 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 such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPurchaser.
(df) 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 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 conduct, at its sole cost exercise all rights and expense, any inspections, studies or tests that Purchaser deems appropriate remedies afforded to it on account thereof in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants accordance with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to SellerAgreement.
(g) Purchaser acknowledges and agrees that it Except as otherwise provided herein, Seller shall have no right to review or inspect any not, after the date of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as 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 listed given or withheld in paragraph 3.1 above)Purchaser’s sole discretion; provided, (iii) appraisalshowever, assessments the foregoing shall not restrict Seller’s actions relating to obtaining the Ground Lessor Consent and Estoppel or other valuations of the Ground Lease Assignment as contemplated pursuant to this Agreement. Any title matter recorded against the Property in the possession violation of Seller or HCMC, and (ivthis Section 2.4(g) management agreementsshall be deemed to be a Monetary Title Encumbrance for all purposes hereunder.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination As of this Agreement shall survive Closing or any termination the Effective Date, Purchaser has received confirmation that Manager has approved Purchaser as a transferee of this Operating Lessee under the Management Agreement (collectively, the "Surviving Obligations"“Manager Approval”).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Braemar Hotels & Resorts Inc.)
Due Diligence. (a) Each Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals subject, for the avoidance of doubt, to the limitation on reimbursement for appraisals set forth in Article 28(e)), the Seller Parties and Servicers for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Each Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), such Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of such Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Each Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance with Article 28(a).
(c) Each Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days upon reasonable 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 such Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about any of the foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, each Seller acknowledges that Purchaser shall have may enter into Transactions with such Seller based solely upon the right information provided by such Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Purchaser and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter identified by Purchaser in writing in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and such third party underwriter with reasonable access in accordance with the terms hereof to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof.
(e) Purchaser agrees and covenants with Each Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders reimburse Purchaser within ten (the "Indemnified Parties"10) harmless from and against Business Days after receipt of an invoice therefor for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or Article 28 (subject, for the avoidance of doubt, to the limitation on reimbursement for appraisals set forth in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 abovefirst sentence of Article 27(a)), provided that, so long as no Event of Default has occurred and is continuing, Sellers shall only be required to reimburse the costs of obtaining updated appraisals for any Mortgaged Property pursuant to this Article 28 on or after the twelve (iii12) appraisals, assessments or other valuations month anniversary of the Purchase Date for the related Purchased Asset and in no event more frequently than once for any Mortgaged Property in the possession of Seller or HCMC, and per twelve (iv12) management agreementsmonth period.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Benefit Street Partners Realty Trust, Inc.)
Due Diligence. Purchaser Throughout the Interim Operational Period, Seller shall, and shall cause its representatives shall be permitted Affiliates to: (i) upon reasonable notice to enter upon Seller, during normal business hours, provide Buyers and their Representatives reasonable access to and the Property at any reasonable time and from time right to time before the Closing Date to examine, inspect and investigate perform non-invasive sampling of all of the Property as well as Transferred Assets, the Pipeline and all books and records and other documentation provided documents and data related thereto; (ii) furnish Buyers and their Representatives with such financial, operating and other data and information related to the Transferred Assets and the Pipeline as Buyers or any of their Representatives may reasonably request; (iii) upon reasonable notice to Seller, permit Buyers and their Representatives to interview managerial personnel familiar with the Transferred Assets, the Pipeline and the Gila River Power Station, generally; (iv) instruct the Representatives of Seller to cooperate with Buyers in their investigation of the Transferred Assets and the Pipeline; (v) provide Buyers with copies of any proposed amendment to any Assigned Contract and any proposed new Contract relating to the Transferred Assets, regardless of whether prior written consent of Buyers’ relating thereto is required by Section 6.2; and (vi) provide Buyers with copies of any correspondence or notice asserting or threatening the assertion of a default under or termination of any Contract relating to the Transferred Assets. No investigation by Buyers or information received by Buyers shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller in this Agreement. Notwithstanding the foregoing, Seller shall not be required to provide any information or located at allow any inspection (x) which it reasonably believes it may not provide to Buyers or allow by reason of applicable Law, which constitutes or allows access to information protected by attorney-client privilege, or which Seller or its Affiliates is required to keep confidential or prevent access to by reason of agreement with third parties so long as Seller has used Commercially Reasonably Efforts to obtain the Property consent of such third party to such disclosure or (collectivelyy) to the extent that it pertains to outage plans, "Due Diligence")market information, forecasts, or planned dispatch of the Power Blocks other than Power Block 3. The Due Diligence Buyers’ right to conduct such activities shall be subject to the terms, conditions and limitations set forth in this Section 3.2.following:
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller All activities of its intent Buyers or their representatives undertaken in connection with such investigation shall comply with applicable Law in all material respects, including Laws relating to enter worker safety and, with respect to invasive environmental testing, to proper disposal of any samples taken and any soil or water generated in the Property to conduct its Due Diligence not less than 48 hours prior to such entry; process of taking any environmentally invasive samples;
(ii) Seller shall be permitted to have one or more of its representatives present during all such investigations, and may take split samples, and copy the date results of onsite testing and approximate time period are scheduled with Seller; and visual inspections;
(iii) Purchaser is in full compliance with Buyers shall, at their own cost, repair any damage to any portion of the insurance requirements set forth in Gila River Power Station or the Pipeline caused by the investigative activities of Buyers or their representatives;
(iv) Buyers shall take commercially reasonable actions and implement commercially reasonable protections necessary to ensure that actions taken under this Section 3.2(f6.1, and equipment, materials and substances generated, used or brought onto the Power Block 3 Site or the Common Property by Buyers, pose no threat to the safety or health of individuals or the environment;
(v) hereof. At Seller's election, a representative of Seller Buyers shall be present during responsible for, and shall indemnify Seller and its Affiliates against, any entry property damage or personal injury incurred by Purchaser Seller or its representatives upon any other Person to the Property for conducting its Due Diligence. Purchaser extent caused by Buyers’ activities under this Section 6.1; and
(vi) All such activities of Buyers shall take all necessary actions be conducted in a manner so as not to insure that neither it nor any of its representatives disturb or interfere with the tenants normal operations of the Transferred Assets, the Gila Bend Power Station or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result Seller’s conduct of its Due Diligencebusiness.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Tucson Electric Power Co)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon For a period of forty-five (45) days after the Property at any reasonable time and from time to time before Effective Date (the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The “Due Diligence shall be subject to the termsPeriod”), conditions Buyer and limitations set forth in this Section 3.2.
(a) Purchaser Buyer’s agents shall have a the right to enter upon upon, go in, on or over the Property and Improvements for the purpose of conducting its Due Diligence provided that surveys, inspections, soil tests, core drillings, environmental testing and other examinations thereof as Buyer may desire. Buyer shall repair any and all damage by reason of any such testing and shall indemnify and save Seller harmless for any liability in each such instance (i) Purchaser notifies Seller connection therewith. In the exercise of its intent rights pursuant to enter the Property to conduct its Due Diligence this Section 20, Buyer shall not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing conduct of Seller’s operations occurring at being conducted on the Property and shall give Seller reasonable advance notice of any such activities Buyer plans to conduct on the Property. Purchaser Within five (5) days of the Effective Date, Seller shall not cause provide Buyer with all copies of property reports such as environmental reports, surveys, title reports, etc. that Seller or permit Seller’s affiliates or agents may have in their possession, if any. At Buyer’s sole discretion Buyer may at any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of time and for any reason during the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving Seller written notice notification of termination such election and the Deposits, plus all accrued interest, shall be paid to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, Buyer and this Agreement shall automatically terminate. In the event become null and void and of such termination, neither party shall have any further obligations to the other party hereunder, no force and effect (except for the Surviving Obligations.
(c) Purchaser shallthis Section 20), at least thirty-one (31) days prior and all copies of this Agreement shall be returned to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser for cancellation. If Buyer does not elect to assume. If Purchaser does not timely give Seller such notice requesting termination of a Service Contractwithin such period, Purchaser this condition shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost be and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser waived and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties Buyer shall proceed to Settlement as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and set forth in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement. Notwithstanding the above, (ii) communications between in no event shall Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the obligated to repair any Property in the possession of Seller or HCMC, and (iv) management agreementsdefects discovered by Buyer’s due diligence investigations.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Agreement of Sale (Green Mountain Coffee Roasters Inc)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon (i) By the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be Date, but subject to subparagraph (c)(ii), the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon conducted whatever investigations and searches the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Moneyacting reasonably, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations deems advisable with respect to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)Purchase Assets, including, without limitation, a Phase II all investigations, inspections, searches, inquiries and tests relating to title to the Property, compliance by the Property with work orders and zoning, plans of surveys, physical and engineering inspections of the Property, compliance with all applicable laws and regulations (including, but not limited to, "applicable laws" within the meaning of the Building Code Act), any agreements with third parties affecting the Property, environmental assessment audits, soil tests, financial audits, operating costs analysis, review of the Due Diligence Documents, Permitted Encumbrances, and any other matters of interest to the Purchaser with respect to the Property (collectively the "DUE DILIGENCE") and shall have been satisfied, in its sole, absolute and subjective discretion, with the results of the Due Diligence. If the Purchaser is so satisfied with its due diligence, it shall give notice in writing of such approval to the Vendor on or boringprior to the Due Diligence Date. If such notice is not given by the Purchaser on or prior to such time, then this Agreement shall terminate, be null and void and of no further force and effect whatsoever, the Purchaser and the Vendor shall be released from all obligations under this Agreement (except for those obligations which survive the termination of this Agreement) and the First Deposit shall be immediately returned to the Purchaser, without deduction, with any accrued interest thereon;
(ii) Notwithstanding the provisions of subparagraph (c)(i), if the Purchaser's Due Diligence identifies any issue or issues which, in the aggregate, may be remedied for a cost not in excess of $250,000 (which cost shall be determined by the Purchaser's consultants, acting reasonably), the Purchaser shall not be entitled pursuant to subparagraph (c)(i) to terminate this Agreement, but at Closing, (i) submitting the Vendor shall provide its undertaking to Seller the scope and inspections for remedy all such testing; issues, at its cost, no later that March 31, 2006, and (ii) obtaining in respect of any such remedial cost in excess of $100,000, the prior written consent amount of Sellersuch excess shall be held back from the Purchase Price until such time as the Vendor has complied with its undertaking, at which consent time such holdback funds shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates paid forthwith to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationVendor.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Due Diligence. (a) Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals), the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at the 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 foregoing Persons, or any 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 least thirty-one (31) days prior its option, has the right at any time to the Closing Date, notify Seller in writing requesting termination of any conduct a partial or complete due diligence review on some or all of the Service ContractsPurchased 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, which are noted on Schedule 2 as being terminable upon 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 under the control, of any Seller Party or any Affiliate thereof.
(e) Seller agrees to reimburse Purchaser within thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except after demand for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of external counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Due Diligence. Purchaser Buyer is hereby granted a period commencing on the Effective Date and its representatives shall be permitted terminating on May 21, 1996 (herein referred to enter upon as the Property at any reasonable time "Due Diligence Period") to inspect the Properties, Seller's books and from time records pertaining to time before the Closing Date to examine, inspect and investigate the Property as well as all records Properties and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject information relating to the termsProperties, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in PurchaserBuyer's sole discretion, to determine whether the Property is acceptable to Purchasercost and expense. If during During the Due Diligence Period, Purchaser becomes aware Buyer may perform, at Buyer's sole cost and expense, such items of any problem or defect due diligence as it may deem appropriate, provided Buyer keeps all such information obtained strictly confidential. Seller hereby authorizes Buyer and Buyer's agents, upon reasonable notice and during reasonable business hours, to enter upon the Properties in order to inspect the Property or any other aspect same and to conduct the desired due diligence including but not limited to, environmental and engineering studies, all at Buyer's sole cost and expense. If Buyer elects not to acquire the Properties pursuant to the terms and conditions hereof, Buyer must notify Seller in writing prior to 5:00 PM on May 21, 1996, time being of the Property which Purchaser determines makes essence with respect to such date and time (the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving "Due Diligence Expiration Date"). If such written notice of termination is not delivered to Seller on or before the last day of by Buyer prior to the Due Diligence Period. If Purchaser does not timely Expiration Date, Buyer shall be obligated to deliver to the Xxxxxxx MoneyEscrow Agent the Second Deposit and to close the transaction contemplated hereby pursuant to the terms and conditions hereof, and shall have and shall be deemed to have waived any and all rights to terminate this Agreement shall automatically terminateContract pursuant to this paragraph. In the event of such terminationBuyer does timely notify Seller in writing that it has elected to terminate this Contract, the First Deposit shall be returned to Buyer and this Contract shall be deemed to be terminated and neither party shall have any further rights against or obligations to the other party hereunderother, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller as otherwise expressly provided in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service this Contract. Purchaser shall assume all other Service Contracts For and in the manner provided herein.
(d) Purchaser shall have consideration of the right to conductinspect the Properties and to conduct the desired due diligence, at its sole cost Buyer agrees to restore any and expense, any inspections, studies or tests that Purchaser deems appropriate in determining all damage to the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, Properties and/or any of the reports or any other documentation or information obtained them caused by Purchaser which relates to the Property or Seller in any wayBuyer and/or Buyer's agents, all of which shall be used by Purchaser representatives, brokers, contractors, subcontractors, employees and/or licensees and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claimssuits, actions, proceedings, damages, losses, damagesliabilities, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Propertyrepairs, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damagesfees, costs and expenses (including, without limitation, including reasonable attorneys' fees fees, costs and court costsexpenses) resulting from caused by Buyer or its agents, representatives, brokers, contractors, subcontractors, employees or licensees or arising out of or relating to Buyer's (or Buyer's agents', representatives', brokers', contractors', subcontractors', employees' or licensees') inspection, activities or entrance on the mere discovery Properties and/or any one of information on them. The aforesaid obligation to restore and aforesaid indemnity shall survive the Closing or the earlier termination of this Contract. It is specifically understood and agreed that the transaction contemplated hereby is an "all or none" transaction meaning that if Buyer elects to terminate this Contract pursuant to any express provision of this Contract (including this paragraph 12) with respect to one or more, but not all, of the Properties, then Buyer's election to terminate shall be deemed to be and shall operate as an election to terminate the entire Contract for all of the Properties (the "All or None Condition"). If such election is made by Buyer, this Contract shall be deemed to be terminated and Buyer shall be entitled to a condition at return of the Property. Furthermore, Purchaser agrees to maintain and Contract Deposit (or so much as may have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC"been deposited) and Xxxxxxx Properties of Florida Ltd. neither party shall have any further right or obligation hereunder except as additional insuredsotherwise expressly provided in this Contract. Purchaser shall deliver Notwithstanding the foregoing, in the event Buyer timely elects to Seller a copy terminate this Contract with respect to one or more, but not all, of the certificate Properties, Seller shall have the right, in its sole and absolute discretion, to waive the All or None Condition and to elect to permit Buyer to purchase the Property or Properties with respect to which Buyer did not elect to terminate this Contract, on the terms and conditions set forth herein except Seller and Buyer shall mutually agree upon the purchase price for such Property or Properties. The foregoing provision shall apply to all of insurance effectuating the insurance required hereunder prior rights of Buyer to the commencement of such activities terminate this Contract which certificate shall provide that such insurance are expressly set forth herein including paragraphs 4, 12 and 15 hereof, provided, however, this paragraph shall not be terminated or modified without at least thirty (30) days' prior written notice deemed to Seller.
(g) Purchaser acknowledges and agrees that it shall have no grant to Buyer any right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with terminate this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsContract not expressly set forth herein.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
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Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth Exclusion of information warranties
5.1 Save as provided in this Section 3.2.
Agreement, no representations, warranties or conditions, express or implied, statutory or otherwise (a) Purchaser shall have a right including, without limitation as to enter upon condition, quality, satisfactory quality, performance or fitness for purpose), are given or assumed by BT or the Property for the purpose of conducting its Due Diligence provided that Authority in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day respect of the Due Diligence Period in which Items or the Project and any such representations, warranties or conditions are excluded, save to conduct the extent that any exclusion is prohibited by law.
5.2 The Contractor acknowledges that it shall be liable under this Agreement as if it had:
5.2.1 made and would make its Due Diligence and, in Purchaser's sole discretion, own enquiries to determine whether satisfy itself as to the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware accuracy and adequacy of any problem information supplied to it by or defect in on behalf of BT, the Property Authority, any Authority Service Recipient or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate Authority Party; and
5.2.2 entered into this Agreement in reliance on its own due diligence alone; and
5.2.3 in entering into this Agreement not relied on any representation, warranty or condition, express or implied, save for those expressly provided in this Agreement and those which cannot be excluded by giving written notice law.
5.3 The Contractor shall notify BT in writing of termination changes to Seller on or before the last day any aspect of the Due Diligence Period. If Purchaser does not timely deliver Items or matters related thereto of which it becomes aware during the Xxxxxxx Money, performance of this Agreement shall automatically terminatewhich affects its ability to perform the Services or meet any Service Level Specifications. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, The Contractor acknowledges that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser it is not permitted entitled to perform recover any intrusive testing (except for limited asbestos sampling to additional costs from the Authority which arise from, or be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, relieved from any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties obligations as a result of, any change to any aspect of the Due Diligence Items or matters related thereto save where the Contractor has been provided with fundamentally misleading information by or on behalf of the Authority, any Authority Service Recipient or any Authority Party and the Contractor could not reasonably have known the information was incorrect or misleading in which case the Contractor shall be entitled to recover such reasonable additional costs from the Authority or be relieved from performance of its obligations as shall be determined by the Change Control Procedure.
5.4 Subject to subclause 5.5, neither BT nor the Authority shall be liable to the Contractor in respect of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors failure to disclose or other agents) relating make available to the PropertyContractor (whether before, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at after the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits execution of coverage, and commercial general liability insurance with (ithis Agreement) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analysesinformation, documents or reports prepared by data, or for Seller in connection with this Agreement the Due Diligence Items, nor any failure to inform the Contractor (whether before, on or in connection with the transaction contemplated by after execution of this Agreement) of any inaccuracy, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above)error, (iii) appraisalsomission, assessments defects or other valuations of the Property inadequacy in the possession of Seller or HCMC, and (iv) management agreementsDue Diligence Items.
(h) Sections 3.2(e) and 3.2(f) and such other provisions 5.5 Nothing in this Agreement which expressly survive Closing Clause 5 shall limit or termination exclude the liability of this Agreement shall survive Closing BT, the Authority, any Authority Service Recipient or any termination of this Agreement (collectively, the "Surviving Obligations")Authority Party for fraud or fraudulent misrepresentation.
Appears in 1 contract
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before during the Closing Date Due Diligence Period to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "“Due Diligence"”). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.23.2 and Purchaser's conduct thereof shall be in strict compliance with its covenants and agreements contained herein.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 forty-eight (48) hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure ensure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through until the last day expiration of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during On or before the expiration of the Due Diligence Period, Purchaser becomes aware of any problem or defect in shall deliver to Seller written notice indicating whether Purchaser will proceed with the Property or any other aspect purchase of the Property which Purchaser determines makes in accordance with the Property unsuitable to Purchaser, Purchaser may terminate terms and conditions of this Agreement by giving Agreement. If no such written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contractis received by Seller, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right elected to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection proceed with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations purchase of the Property in accordance with the possession terms and conditions of Seller or HCMCthis Agreement, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions the condition precedent set forth in this Agreement which expressly survive Closing or termination of Section 3.2(b) shall be deemed satisfied and this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")continue in full force and effect.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon During the Property at any reasonable time and from time to time before forty-five (45) day period commencing on the Closing Date to examine, inspect and investigate date of execution of this Agreement (the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The “Due Diligence Period”), MFW shall be subject allow SYMMETRY, and SYMMETRY’s agents, access to the terms, conditions Subject Property without charge and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property at all reasonable times for the purpose of SYMMETRY’s investigation of and non-invasive testing the same, upon the condition that MFW receives written notice thereof at least three (3) business days in advance, which written notice identifies the nature and the scope of the investigation and testing, the identity of the party or parties who or which will be conducting its Due Diligence provided the same, and the purpose or purposes therefor. MFW shall have the right, without limitation, to disapprove any and all entries, surveys, tests, investigations and the like that in each its reasonable judgment could result in any injury to the Subject Property or breach of any agreement to which MFW or SSI is a party, or expose MFW to any liability, costs, liens or violations of applicable law, or otherwise adversely affect the Subject Property or MFW’s interest therein. No consent by MFW of any such instance (i) Purchaser notifies Seller activity shall be deemed to constitute a waiver by MFW or assumption of its intent liability or risk by MFW. SYMMETRY shall not permit any mechanic’s or materialmen’s liens or any other liens to enter attach to the Subject Property by reason of the performance of any work or the purchase of any materials by SYMMETRY or any other party in connection with any studies or tests conducted by or for SYMMETRY. SYMMETRY shall take all reasonable actions and implement all reasonable protections necessary to ensure that all actions taken in connection with the investigations and inspections of the Subject Property, and all equipment, materials and substances generated, used or brought onto the Subject Property pose no material threat to the safety of persons or the environment and cause no damage to the Subject Property or other property of MFW or other persons. SYMMETRY shall pay all costs and expenses of such investigations and testing, including a phase one environmental site assessment. SYMMETRY shall deliver to MFW copies of all investigation and test reports, results, and data, and SYMMETRY shall immediately and forthwith repair all damages to the Subject Property caused by or occurring during SYMMETRY’s investigation and testing and restore and return the Subject Property to conduct its Due Diligence not less than 48 hours substantially the same condition as existed prior to such entry; (ii) , at SYMMETRY’s cost and expense, unless SYMMETRY closes on the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with purchase of the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Subject Property. Purchaser SYMMETRY shall waive all claims, indemnify, defend (with attorneys reasonably satisfactory to MFW), and hold harmless MFW, SSI and their respective agents, employees, directors, representatives, shareholders, partners and affiliated entities from and against any actions, omissions or negligence by SYMMETRY and its agents and representatives. SYMMETRY shall waive all claims, indemnify, defend (with attorneys reasonably satisfactory to MFW), and hold harmless MFW and SSI from any and all claims, damages, costs (including, but not cause limited to attorney and expert fees) and liability arising out of or permit any mechanic liensdue to bodily injury, materialmen's liens disease, death, property damage or other liens SYMMETRY’s and its agents’ entries, surveys, tests, investigations, and the like. This clause is not intended to be filed against the Property as a result of indemnify MFW or SSI for claims caused solely by its Due Diligence.
(b) Purchaser own negligence. SYMMETRY shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence andright, in Purchaser's its sole and absolute discretion, to determine whether the Property is acceptable elect to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement without penalty by giving written notice for any reason relating to the condition of termination the Real Property of such election to Seller on or before MFW at any time prior to the last day expiration of the Due Diligence Period. If Purchaser does not SYMMETRY shall timely deliver the Xxxxxxx Moneyelect to so terminate this Agreement, this Agreement shall automatically terminate. In the event of such termination, be terminated and neither party shall have any further rights, liabilities or obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to as otherwise expressly provided herein. The indemnity provisions of this Section 14 shall survive the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")Contract.
Appears in 1 contract
Samples: Real Property Sale and Purchase Agreement (Symmetry Medical Inc.)
Due Diligence. (a) Seller acknowledges that Purchaser, at reasonable times and upon reasonable notice to Seller, Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals not to exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and is continuing); provided 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, the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Xxxxxx agrees to cooperate with Xxxxxxxxx and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs reasonable and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, documented out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. Purchaser and its representatives 6.1 The Parties shall be permitted allowed up to enter upon the Property at any reasonable time and from time to time before including the Closing Date Date, which shall be referred to examine, inspect and investigate as the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The “Due Diligence shall be subject Period”, to the terms, conditions and limitations set forth in this Section 3.2.satisfy themselves that:
(a) Purchaser shall have a right the title to enter upon the Property for the purpose of conducting its Due Diligence Exchange Properties is good and free from restrictions, mortgages, charges, liens and encumbrances except as otherwise specifically provided that in each such instance this Agreement and save and except for:
(i) Purchaser notifies Seller of its intent to enter any registered restrictions or covenants that run with the Property to conduct its Due Diligence not less than 48 hours prior to Exchange Properties, provided that such entry; have been complied with, (ii) the date any registered municipal agreements and approximate time period are scheduled agreements with Seller; and publicly regulated utilities, provided that such have been complied with, (iii) Purchaser is any easements and rights-of-way, provided that such have been complied with, (iv) any qualifications, reservations, provisos and limitations contained in full compliance with or imposed by any applicable statute and/or any authority having jurisdiction over the insurance requirements set forth Exchange Properties provided that such have been complied with, (v) any discrepancies in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall title or possession which would be present during any entry disclosed by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.an up-to-date survey; and
(b) Purchaser shall have through there are no outstanding orders, deficiency notices or directives issued by any federal, provincial or municipal authority affecting the last day of the Due Diligence Period in which to conduct its Due Diligence andExchange Properties.
6.2 If, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during within the Due Diligence Period, Purchaser becomes aware the Parties notify each other or their Solicitors of any problem valid objection to title or defect in to any outstanding order, deficiency notice or directive or to the Property or any other aspect fact that the present use of the Property Exchange Properties may not be lawfully continued and which Purchaser determines makes the Property unsuitable Parties are unable or, in their discretion, determine not to Purchaserremove, Purchaser may terminate remedy or satisfy and which the Parties will not waive, this Agreement by giving written notice shall, notwithstanding any intermediate acts or negotiations in respect of termination any such matter, be at an end. Save as to Seller on or before the last day of any valid objection so made within the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have and except for any further obligations objection going to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all root of the Service Contractstitle, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser the Parties shall be conclusively deemed to have accepted the assumption Parties’ title to the Exchange Properties.
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 Exchange Properties at their own expense on or before the Closing Date.
6.4 The Parties shall not call for the production of such Service Contract. Purchaser shall assume all any title deed, abstract, survey or other Service Contracts evidence of title to the Exchange Properties except as are in the manner provided hereincontrol or possession of the Parties. The Parties agree that the Parties will deliver any sketch or survey of the Exchange Properties 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 Exchange Properties. The City shall be solely liable for the cost of any up-to-date survey, surveyor's description or reference plan of the Exchange Properties that may be required in connection with the completion of the transactions contemplated by this Agreement.
(d) Purchaser 6.5 The Parties shall, upon request, forthwith deliver letters in a form satisfactory to the Parties addressed to such governmental authorities as may be reasonably requested by the Parties or their solicitors authorizing the release of any information as to compliance matters which such governmental authorities may have pertaining to the Exchange Properties; provided, however, that nothing herein contained shall have be deemed to authorize or permit the right Parties to conductrequest any governmental or municipal inspections of the Exchange Properties. If this Agreement is not completed the Parties shall keep any such information strictly confidential and shall not use it for any purpose whatsoever.
6.6 There is no condition, at its sole cost and expenserepresentation or warranty of any kind, any inspectionsexpress or implied, studies or tests that Purchaser deems appropriate in determining the condition of the PropertyExchange Properties shall be appropriate for any particular use, providedunless expressly set out herein, howeveror that the present use by the Parties or the future intended use by the Parties is or will be lawful or permitted, Purchaser or that any sketch or survey delivered by the Parties is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part complete or accurate. Without limiting the generality of Purchaser's Phase I site assessment)the foregoing, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent this Agreement shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to affected by any third party (other than lenders, accountants, attorneys and other professionals and consultants change in connection with the transaction contemplated herein) zoning or use of the Exchange Properties prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationcompletion.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall Buyer will have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) until 5:00 p.m. Pacific Time on the date and approximate time period are scheduled with Seller; and (iii) Purchaser that is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect from the Effective Date of this Agreement (the “Review Period”) to assumeconduct all of its inspections and due diligence and satisfy itself regarding the Property and this transaction. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed Buyer agrees to have accepted indemnify and hold Seller harmless for any loss or damage to the assumption Property or persons caused by Buyer or its agents arising out of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition physical inspections of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent this indemnity shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination Agreement. Within three (3) business days of the Effective Date of this Agreement (collectivelyAgreement, Seller shall provide, to the extent such items are in its possession, the "Surviving Obligations"items listed on Exhibit “B” (“Seller’s Materials”). Within such three (3) business day period, Seller shall also provide contact information for Seller’s contact regarding the Property during the Review Period. Buyer may cancel this Agreement before the expiration of the Review Period for any reason or no reason at all in its sole discretion by delivering a cancellation notice to Seller and Closing Agent prior to the expiration of the Review Period. If this Agreement is not cancelled as set forth above, the Xxxxxxx Money shall be non-refundable unless Seller shall default hereunder, in the event of a failure of a condition precedent as to which the Agreement expressly provides for the return of the Xxxxxxx Money to Buyer, or in the event of a casualty or condemnation, subject to the provisions of Section 16 below. If Buyer cancels this Agreement before the expiration of the Review Period, as permitted under this Section, except for any escrow cancellation fees charged by the Title Company and any liabilities under the first paragraph of this Section 6 and those provisions stating otherwise (which will survive), Seller (after execution of such documents reasonably requested by Seller to evidence the termination hereof) shall return to Buyer its Xxxxxxx Money and Buyer will have absolutely no rights, claims or interest of any type in connection with the Property or this transaction, regardless of any alleged conduct by Buyer, Seller or anyone else.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Aei Income & Growth Fund Xxi LTD Partnership)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon For a period from the Property at any reasonable time and from time to time before Effective Date until October 25, 2010 (the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The “Due Diligence Period”), Buyer shall be subject with reasonable prior notice to Seller have the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon upon, go in, on or over the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies building surveys, inspections, soil tests, core drillings, environmental testing and other examinations thereof as Buyer may desire. Seller of its intent has the right, but is not obligated, to enter be present at the Property at all times during any inspections, examinations and other tests conducted by Buyer pursuant to conduct its Due Diligence not less than 48 hours this Agreement. Seller shall designate a person who shall be notified by phone prior to such entry; (ii) entry on the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry Property by Purchaser Buyer or its representatives upon the Property for conducting its Due Diligenceagents. Purchaser Buyer shall take repair any and all necessary actions to insure that neither it nor damage by reason of any of its representatives interfere with the tenants or ongoing operations occurring at the Propertysuch testing and shall indemnify and save Seller harmless from any liability in conjunction therewith. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the During this Due Diligence Period, Purchaser becomes aware Buyer shall obtain (i) approval of any problem all state, county, government or defect in quasi-governmental incentives required, and (ii) an acceptable Phase I Environmental Report. In the Property or any other aspect event Buyer is not satisfied with the results of its inspection of the Property which Purchaser determines makes for any reason whatsoever, or the Property unsuitable to Purchaserrequired incentives are not approved, Purchaser Buyer in its sole discretion may before the end of this Due Diligence Period terminate this Agreement by giving Seller written notice notification of termination such election and the Deposit and all accrued interest shall be returned to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, Buyer and this Agreement shall automatically terminatebecome null and void and of no force and effect and all copies of this Agreement shall be returned to Seller for cancellation. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser If Buyer does not elect to assume. If Purchaser does not timely give Seller such notice requesting termination of a Service Contractwithin such period, Purchaser all conditions herein shall be deemed to have accepted be, and shall be, waived, the assumption of such Service ContractDeposit will become non-refundable and the Seller and Buyer shall proceed to Settlement as set forth in this Agreement. Purchaser shall assume all other Service Contracts in To the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, extent any of the reports following documents or items exist and are in Seller's or Seller's agent's possession or control and have not already been delivered to Buyer, Seller shall deliver original or legible copies of the following documents to Buyer within ten (10) business days following the Effective Date.
1. Current leases, management, maintenance and service agreements and contracts relating to the Property but not related to Seller's retained property.
2. Copies of real estate tax bills for the current and prior two (2) tax years, including information regarding any other documentation proposed reassessments or information obtained by Purchaser appeals relating to the Property.
3. A list of any personal property or chattel currently used in the maintenance and operation of the Property which relates shall be included in the sale (including furniture, fixtures and equipment).
4. Copies of all certificates of insurance evidencing All Risk Property Insurance and General Liability Insurance pertaining to the Property and chattel.
5. Documentation concerning any actual, pending or, to the best of Seller's knowledge, threatened litigation against the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the PropertyProperty and/or its ownership).
6. Documentation concerning written violations cited against the Property (whether or not corrected), includingfrom the federal, without limitationstate, mechanics' liens, damage to county or local regulatory authorities within the last three (3) years.
7. Copies of all Certificates of Occupancy (or their equivalent) issued for the Property, injury to persons plus copies of any other permits or property resulting from such activities, and in the event certificates that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior have been issued relative to the commencement of such activities which disturb operation or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations use of the Property in the possession of Seller Seller's or HCMC, and (iv) management agreementsSeller's agent's possession.
(h) Sections 3.2(e) 8. Copies of any “as built” and 3.2(f) “as existing” plans and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, specifications for the "Surviving Obligations")Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Winnebago Industries Inc)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Each Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, acknowledges that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall and Collateral Agent have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants continuing due diligence reviews with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates respect to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense Purchased Assets (including, without limitation, obtaining updated or new appraisals subject to the limitation on reimbursement for appraisals set forth in clause (f) below), the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Each Seller agrees that upon reasonable attorneys' fees prior notice (unless an Event of Default has occurred and court costsis continuing, in which case no prior notice shall be required), such Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) suffered reasonable access to Purchaser and Collateral Agent and any of their respective agents, representatives or incurred permitted assigns to the offices of such Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and 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 Purchased Assets in the possession or under the control of such party.
(b) Each Seller agrees that it shall, promptly upon reasonable request of Purchaser or Collateral Agent, deliver (or shall cause to be delivered) to Purchaser and Collateral Agent and any of their respective agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser and Collateral Agent in accordance with Article 28(a).
(c) Each Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and Collateral Agent and any of their respective agents, representatives or permitted assigns (i) in person at the time of any inspection pursuant to Article 28(a) or (ii) upon reasonable 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 such Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about any of the Indemnified Parties as a result of foregoing Persons, or any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) matters relating to the PropertyTransaction Documents or any Transaction that Purchaser or Collateral Agent wishes to discuss with such Person.
(d) Without limiting the generality of the foregoing, each Seller acknowledges that Purchaser may enter into Transactions with any Seller based solely upon the information provided by such Seller to Purchaser or Collateral Agent and the representations, warranties and covenants contained herein, and that Purchaser or Collateral 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. Purchaser may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Each Seller agrees to reasonably cooperate with Purchaser, Collateral Agent and any third party underwriter designated by Purchaser or Collateral Agent in writing in connection with such underwriting, including, without limitationbut not limited to, mechanics' liensproviding Purchaser, damage Collateral Agent and such third party underwriter with access to the Propertyany and all documents, injury records, agreements, instruments or information relating to persons or property resulting from such activities, and Purchased Assets in the event that possession, or under the Property is disturbed control, of any such Seller Party reasonably requested by Purchaser or altered Collateral Agent in writing.
(e) Each Seller agrees to reimburse Purchaser or Collateral Agent, as applicable, within ten (10) Business Days after receipt of an invoice therefor for any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, and all reasonable out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from incurred by Purchaser or Collateral Agent, as applicable, in connection with its due diligence activities pursuant to this Article 28; provided that, so long as no Event of Default has occurred and is continuing, Sellers shall only be required to reimburse the mere discovery cost of information on appraisals in accordance with the following clause (f).
(f) To the extent that a Borrower under any Purchased Asset delivers a new or updated appraisal of a condition at Mortgaged Property securing such Purchased Asset, the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser related Seller shall deliver (or cause to Seller be delivered) to Purchaser and Collateral Agent a copy of such appraisal no later than five (5) Business Days after such Seller has received the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any same. Any additional appraisals of the following: (i) internal memorandaMortgaged Properties obtained or requested by Collateral Agent or Purchaser shall, correspondenceso long as no Event of Default has occurred and is continuing, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller be at Collateral Agent’s sole cost and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsexpense.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before during the Closing Date Due Diligence Period to examine, inspect and investigate the Property as well as the Due Diligence Materials and all other records and other documentation provided by Seller or located at the Property (collectively, "“Due Diligence"”). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.23.2 and Purchaser's conduct thereof shall be in strict compliance with its covenants and agreements contained herein.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 forty-eight (48) hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure ensure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through until the last day expiration of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence PeriodPurchaser may, Purchaser becomes aware of for any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaserno reason, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day expiration of the Due Diligence Period. If Purchaser does not timely deliver give notice of termination as aforesaid, Purchaser shall be deemed to have elected to purchase the Xxxxxxx MoneyProperty in accordance with the terms and conditions of this Agreement, the condition precedent set forth in this Section 3.2(b) shall be deemed satisfied and this Agreement shall continue in full force and effect. In the event Purchaser’s written notice to Seller under this Section 3.2(b) indicates that Purchaser will not proceed with the purchase of the Property in accordance with the terms and conditions of this Agreement, this Agreement shall automatically terminate. In , the event Refundable Portion shall be returned to Purchaser and the balance of such termination, the Non-Refundable Portion being held in escrow shall be disbursed to Seller and neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations; provided, however, the entire Xxxxxxx Money shall be returned to Purchaser in the event Purchaser terminates this Agreement in accordance with this Section 3.2(b) as a result of (i) a material or adverse environmental matter disclosed in the Updated Phase I that was not disclosed in the Seller’s Phase I, (ii) any material adverse matter revealed by the Amended Survey not shown on the Existing survey, or (iii) Buyer’s zoning report on the Property determines that the current unit density of the Property is not permitted pursuant to applicable zoning laws (each a “Refundable Condition”).
(c) Purchaser shall, at least thirty-one (31) days prior Prior to the Closing Dateend of the Due Diligence Period, Purchaser shall notify Seller in writing requesting termination of any or all of the Service ContractsContracts on Schedule 2 (other than the excluded service agreements), which are noted on Schedule 2 as being terminable upon thirty (30) days notice, notice that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in listed on Schedule 2 (other than the manner provided hereinexcluded service agreements). Notwithstanding the foregoing, Purchaser shall have no obligation to assume any Service Contract that is not assignable without the other party’s consent where such consent has not been obtained prior to the Closing Date.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, including obtaining an updated Phase I environmental report (the “Updated Phase I”), provided, however, Purchaser is not permitted to perform any sampling, boring, drilling or other physically intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)into the structures or ground comprising the Property, including, without limitation, a Phase II environmental assessment or boringassessment, without (i) submitting to Seller the scope and inspections specifications for such testing; and (ii) obtaining the prior written consent of SellerSeller for such testing, which consent shall not may be unreasonably withheldwithheld in Seller’s sole and absolute discretion.
(e) Prior to Closing, Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationPurchaser agrees that all such information will continue to be held in strict confidence.
(f) Purchaser agrees to indemnify, protect, defend and hold Seller and its respective direct and indirect partners, trustees, beneficiaries, shareholders, members, managers, officers, directors, employees, advisors and other agents and their respective employees(collectively, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all liabilities, demands, actions, causes of action, suits, claims, losses, damages, costs and expense expenses (including, without limitation, reasonable attorneys' fees ’ fees, court costs and court costslitigation expenses) suffered or incurred by any of the Indemnified Parties as a result of or in connection with any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activitiesactivities in connection therewith. Notwithstanding the foregoing, and in Purchaser’s indemnification obligations under this Section 3.2(f) shall not extend to any preexisting conditions merely found to exist by Purchaser or any condition caused by any gross negligence or willful misconduct of the Indemnified Parties. In the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its substantially the same condition existing prior to the commencement of such activities which disturb disturbed or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at altered the Property. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any Due Diligence to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Two Million and 00/100 Dollars ($1,000,000.002,000,000.00) per occurrence for personal injury, including bodily injury and death, and property damage. Such insurance shall name , (ii) Holland Breckenridge Apartment Homes, LLC, Holland 191 II, LLC, Holland Partner Group Management, Inc. and Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. Management, LLC named as additional insuredsinsured parties, and (iii) waiver of subrogation. Purchaser shall deliver to Seller a copy of the certificate certificates of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate certificates shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller or an affiliate of Seller in connection with (A) this Agreement or in connection with Agreement, (B) the transaction contemplated by this Agreement, or (C) the acquisition or refinancing of the Property by Seller (other than environmental reports, if any), (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above)its affiliates, and (iii) appraisals, assessments appraisals or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsits affiliates.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which designated as expressly survive Closing or surviving the termination of this Agreement hereof shall survive Closing or any the termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser Buyer shall have a right to enter ninety (90) day period (the “Due Diligence Period”) commencing upon the Property for the purpose date of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property this Agreement to conduct its Due Diligence not less than 48 hours prior due diligence with respect to such entry; (ii) Seller, the date Business and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereofReal Property, including without limitation, an environmental investigation. At Seller's electionIf, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of Buyer determines that it is not in Buyer’s interest to close on the transaction contemplated herein, for any problem reason or defect no reason determined by Buyer in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaserits sole and absolute discretion, Purchaser then Buyer may terminate this Agreement without obligation to Seller or the Members by giving written notice of such termination to Seller on or before the last day Seller. Beginning upon the date of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, Buyer’s execution of this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to and running through the Closing Date, notify Seller shall provide to Buyer and its representatives, agents and independent contractors the access to Seller, the Business and its properties necessary for Buyer to complete its Due Diligence regarding the transactions contemplated herein. If the conditions set forth in writing requesting termination of any or all of paragraph 6 and 8 have been satisfied, Buyer may terminate the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days Due Diligence Period prior to its expiration by giving written notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted in which case the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior parties will proceed to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates subject to the Property or Seller in any wayterms and conditions of this Agreement. Buyer shall defend, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend indemnify and hold harmless Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damagesdamages or expenses, costs and expense (including, without limitation, reasonable including but not limited to attorneys' fees and court costs) fees, for personal injury or property damage that may be sustained, suffered or incurred by Seller or any third party arising directly out of the Indemnified Parties as a result of Buyer's pre-closing due diligence activities pursuant to this paragraph 7.d. No party shall have any activities of Purchaser (including activities of liability to any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include party for any claims, losses, damages, costs and losses damages or expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting arising from the mere discovery announcement of information on or a condition at the Propertythis Agreement. FurthermoreFurther, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it Buyer shall have no right liability with respect to review or inspect any of pre-existing conditions on the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with Real Property under this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements7.d.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Asset Purchase Agreement (Speedway Motorsports Inc)
Due Diligence. (a) Sellers, the Companies and the CAC Subsidiaries shall provide Purchaser and its representatives Entity Representatives with reasonable access, during normal business hours and in such manner as not to unreasonably interfere with normal operations of the business of Sellers, the Companies, the CAC Subsidiaries, or the Nytis LLC Subsidiaries, to the Background Materials and Records of the Companies, the CAC Subsidiaries, and the Nytis LLC Subsidiaries for inspection and review to permit Purchaser to perform its due diligence review (the “Due Diligence Review”) as provided for in this Agreement. Sellers, the Companies and the CAC Subsidiaries shall be permitted make such Background Materials and Records available to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located Purchaser in a virtual data room and/or at the Property Lexington, Kentucky offices of Sellers, during Sellers’ normal business hours. Notwithstanding the foregoing, Purchaser shall have no right of access to, and Sellers shall have no right or obligation to provide to Purchaser, information relating to bids received from others in connection with the Contemplated Transactions or information and analyses (collectively, "Due Diligence"). The Due Diligence shall be subject including financial analyses) relating to the terms, conditions and limitations set forth in this Section 3.2such bids.
(ab) Notwithstanding Section 4.1(a) or any other provision in this Agreement to the contrary, any obligation of Sellers, the Companies or the CAC Subsidiaries under Section 4.1(a) to make any such Background Materials and Records available to Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance be: (i) Purchaser notifies Seller only to the extent that doing so does not violate any confidentiality or other obligation under any contract or agreement of its intent Sellers, the Companies, the CAC Subsidiaries or the Nytis LLC Subsidiaries or any of their respective Affiliates to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entryany third party; (ii) only to the date extent such Background Materials or Records, but excluding any title opinions and approximate time period title memoranda, are scheduled with Sellernot protected by the attorney-client privilege, the work product doctrine, or other applicable privilege or any such privilege would be likely to be waived, voided, rendered voidable or destroyed by disclosure to Purchaser or any of its respective Entity Representatives; and (iii) Purchaser is in full compliance with only to the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure extent that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser such disclosure does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event result in a violation of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving ObligationsLaw.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right entitled to conduct, at its sole cost and Purchaser’s expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any I Environmental Site Assessment of the reports or any other documentation or information obtained by Purchaser which relates Seller Operated Properties and may conduct visual inspections relating to the Property or Seller in any wayOperated Properties, including their condition and compliance with Environmental Laws, all of which shall be used completed prior to the Defect Notice Deadline; provided, however, that if Purchaser conducts a Phase I Environmental Site Assessment on any of the Seller Operated Properties, it will provide Sellers with a copy of any final reports or findings generated in connection therewith. Neither Purchaser nor its Entity Representatives may operate any equipment or conduct any testing or sampling of soil, groundwater or other materials (including any testing or sampling for Hazardous Materials, Hydrocarbons or NORM) on or with respect to the Acquired Assets (the “Invasive Activity”) prior to the Closing without the prior written consent of Sellers (which consent Sellers will not unreasonably withhold, condition or delay), and all such activities without Sellers’ consent shall be deemed outside of the scope of a Phase I Environmental Site Assessment; provided, however, should Sellers withhold such consent with respect to any Seller Operated Property, then such Seller Operated Property may, at Purchaser’s option, be excluded from the transactions contemplated hereby, included in Excluded Assets and transferred prior to Closing to Sellers (or an Affiliate) pursuant to an Assignment of the Excluded Assets, in which event the Base Purchase Price shall be reduced by an amount equal to the Allocated Value of such Seller Operated Property. If and to the extent Sellers consent to any Invasive Activity, all such activities must be completed prior to the Defect Notice Deadline. Purchaser and its agents solely in connection with Entity Representatives shall abide by the transaction contemplated herebysafety rules, regulations, and operating policies of Sellers, the Companies and the CAC Subsidiaries and all applicable Laws while conducting their due diligence evaluation of the Acquired Assets. In During all periods that Purchaser or any of Purchaser’s Entity Representatives are on the event that this Agreement is terminatedSeller Operated Properties, this subsection 3.2(e) Purchaser and its Entity Representatives shall survive terminationeach maintain at their sole expense insurance reasonably satisfactory to Sellers, and shall provide proof of such insurance to Sellers upon request.
(fd) Sellers shall have the right to have a representative present at all times during the review or assessment by Purchaser agrees to indemnify, defend and hold Seller and or its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any Entity Representatives of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insuredsSeller Operated Properties. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of hold in confidence all such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Sellerinformation.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Carbon Energy Corp)
Due Diligence. The Purchaser shall not have notified Seller that it elects to terminate this Agreement by reason of its Due Diligence inspections, investigations and its representatives analyses, as follows:
(A) During the forty five (45) day period following the date hereof (the "Due Diligence Period"), the Purchaser shall have the right to (i) inspect the Property, and any and all portions thereof, which inspection may include, but shall not be permitted limited to, zoning, engineering, architectural, environment and air quality studies, utilities investigations, and review of governmental records with respect to enter upon the Property, (ii) inspect all other relevant documents, instruments and agreements relating to the Property at any reasonable time and from time to time before in Seller' possession or control. Within the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the termsPeriod (and thereafter pending Closing, conditions and limitations but without any contingency as set forth in this Section 3.27.2), Seller shall give or cause to be given to the Purchaser and its designees full and free access to the Property and to the materials described above in accordance with terms and conditions of this Section, and to any other relevant information in Seller's possession or control related to the Property. Seller shall not be deemed to represent or warrant the completeness or accuracy of any materials furnished pursuant to this Section except to the extent of a specific warranty or representation of Seller or Seller under this Agreement.
(aB) Purchaser shall have a right to enter upon If the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance not satisfied with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative results of Seller shall be present during any entry by Purchaser such inspections or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence andanalysis thereof, in Purchaser's its sole discretion, the Purchaser shall be entitled to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before given not later than the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, and thereupon this Agreement shall automatically terminate. In be null and void, the event of parties shall have no further obligation or liability in connection with this Agreement (except any liability which expressly survives such termination) and the Deposit plus any interest earned thereon shall be returned to the Purchaser. If the Purchaser fails to give such notice of termination within such three (3) day period, neither party the Purchaser shall have any further obligations waived its right to terminate this Agreement pursuant to this Section 7.2(a)(i). However, the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed permitted to have accepted extend the assumption of such Service Contract. Purchaser shall assume all other Service Contracts Due Diligence Period for up to an additional twenty (20) days in the manner provided herein.
(d) Purchaser shall have event its Phase I environmental study of the right to conduct, at its sole cost and expense, any inspections, studies or tests concludes that Purchaser deems appropriate in determining the condition a Phase II environmental report of the Property, providedor a further environmental investigation, however, is required; provided that (x) the Purchaser is not permitted to perform any intrusive testing (except must make the request for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting such extension in writing to Seller not later the scope and inspections for such testing; last day of the Due Diligence Period, and (iiy) such extension shall be for the sole purpose of obtaining and making a determination of the prior written consent acceptability of Seller, which consent shall not be unreasonably withheldsuch environmental studies.
(eC) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates In conducting its investigations pursuant to the Property or Seller in any wayforegoing provisions, all of which shall be used by the Purchaser and its agents solely and representatives shall: (i) only enter the Property in connection the presence of an authorized representative of the Seller, at times and in such manner that Seller reasonably approves; (ii) not injure or otherwise cause bodily harm to any persons; (iii) promptly pay when due the costs of all tests, investigations and examinations done with regard to the transaction contemplated herebyProperty; (iv) not permit any lien to attach to the Property by reason of the exercise of its rights hereunder; and (vii) promptly restore the Property to the condition in which the same was found before any such inspection or tests were undertaken. In the event that this Agreement is terminatedThe Purchaser shall, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees and does hereby agree to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, lossesdemands, suits, obligations, payments, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damagespenalties, liabilities, costs and expenses (including, without limitationbut not limited to, reasonable attorneys' fees and court costsfees) resulting from arising out of the mere discovery of information Purchaser's or Purchaser's agents' negligent actions taken in, on or a condition at about the Property in the exercise of the rights granted pursuant hereto. In connection with any entry onto the Property. Furthermore, the Purchaser agrees to shall maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coveragea reputable insurer, (ii) waiver of subrogation, and (iii) providing minimum limits of not less than liability of One Million and 00/100 Dollars ($1,000,000.001,000,000) for personal injuryper occurrence, including Two Million Dollars ($2,000,000) aggregate, with an umbrella excess liability policy in the minimum amount of Five Million Dollars ($5,000,000) per occurrence bodily injury injury/ property and deathFive Million Dollars ($5,000,000) aggregate damage/ occurrence, naming the Seller and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. its managing agent as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other The provisions in this Agreement which expressly survive Closing or termination of this Agreement Section 7.2(a)(i)(C) shall survive the Closing or and/or any termination of this Agreement (collectively, the "Surviving Obligations")Agreement.
Appears in 1 contract
Samples: Acquisition Agreement (Pennsylvania Real Estate Investment Trust)
Due Diligence. (a) Seller acknowledges that Purchaser, at reasonable times and upon reasonable notice to Seller, Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals not to exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and is continuing); provided 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 Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Xxxxxx agrees to cooperate with Xxxxxxxxx and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser Xxxxxx agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs reasonable and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, documented out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property Commencing within ten (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a10) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) business days after the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service ContractAgreement, Purchaser shall be deemed to have accepted commence a not greater than ten (10) business day due diligence examination of the assumption of such Service Contract. Purchaser shall assume Branch Office, including the Assets, Accounts, and all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conductcontracts, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates agreements and/or documents related to the Property or Seller in any way, all of which shall be used transactions contemplated by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMCInitial Investigation") and Xxxxxxx Properties of Florida Ltd. as additional insureds. if Purchaser shall deliver decides not to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection proceed with the transaction contemplated by this AgreementAgreement as a result of such investigation, Purchaser shall so advise Seller in writing within such ten (ii10) communications between day period. Purchaser's failure to notify Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations aforesaid shall constitute satisfaction with the condition of the Property in Transferred Assets. Seller shall provide Purchaser full cooperation, disclosure and complete access to all aspects of the possession Branch Office, including, but not limited to all books, records, contracts, commitments, correspondence, accounts, reports, properties and assets and with the full and complete cooperation of Seller, its officers, directors, agents and representatives at the Branch Office. Commencing five (5) business days prior to Closing, Purchaser shall commence a three (3)-business day due diligence examination (the "Subsequent Investigation") consistent with the Initial Investigation. The due diligence examinations contemplated hereby shall be conducted at the sole discretion of Purchaser and Purchaser's right to terminate this Agreement as a result of the Subsequent Investigation shall be based strictly upon the existence of a material adverse change affecting the Transferred Assets which Seller cannot or will not cure within a reasonable period of time. No investigation by Purchaser shall affect the representations and warranties of Seller or HCMC, and (iv) management agreementsset forth herein.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Branch Office Purchase Agreement (Argo Bancorp Inc /De/)
Due Diligence. Purchaser and its representatives 1. Inspections: Prior to the Diligence Expiration Date, Buyer shall be permitted have the right (i) to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate examine the Property and the physical components thereof and to obtain a survey, Phase 1, soils and geology reports or any other third-party reports as well as all records and other documentation provided by Seller or located at the Property Buyer determines is necessary (collectively, "Due Diligence"). The “Due Diligence Inspections”).
a. Buyer shall not damage or alter the Property in any respect as a result of Xxxxx’s Due Diligence Inspections. Buyer shall be subject responsible for restoring the Property to substantially the condition existing prior to the terms, conditions and limitations set forth in this Section 3.2conducting of such Due Diligence Inspections.
(a) Purchaser b. Neither Buyer, its agents or representatives shall have a right undertake any surveys, tests, or environmental studies which involve intrusion to enter upon the surface of the Property without obtaining Seller’s prior written consent to such work or activities, which consent may be withheld in Seller’s sole discretion. Buyer shall ensure that no liens are placed on the Property during its Due Diligence Inspections.
c. In any case that Buyer or its representatives enters the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours Inspections, then prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property Buyer or Buyer’s representative must deliver to Seller in any way, all proof of which shall be used by Purchaser and its agents solely in connection with insurance satisfactory to the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationSeller.
(f) Purchaser agrees to d. To the extent provided by Fla. Stat. 768.28, Buyer shall indemnify, defend and hold Seller and its Seller’s respective partners, trustees, beneficiaries, shareholders, offices, members, managersdirectors, advisors agents, lenders and other agents and their respective employees, officers, directors and shareholders employees (the "“Seller Indemnified Parties"”) harmless from and against any and all losses, costs, liens, claims, lossescauses of action, liability, damages, costs expenses, and expense liability (including, including without limitation, court costs, and reasonable attorneys' fees and court costs’ fees) suffered incurred in connection with or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered arising in any way as a result from the Due Diligence Inspections conducted by, on behalf of or at the request of, Xxxxx. This indemnity provision shall survive termination or expiration of this Agreement. If any proceeding is filed for which indemnity is required hereunder, Xxxxx agrees to defend the indemnified party in such activities, Purchaser shall promptly restore the Property to proceeding at its condition existing prior sole cost utilizing counsel satisfactory to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Sellerindemnified party.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement
Due Diligence. (a) Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals not to exceed one appraisal per year for any Mortgaged Property so long as the related loan is not a Defaulted Asset), the Borrowers (including any other obligors), the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days upon reasonable 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Purchaser and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter designated by Purchaser in writing in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and such third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldreasonably requested by Purchaser in writing.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders reimburse Purchaser within ten (the "Indemnified Parties"10) harmless from and against Business Days after receipt of an invoice therefor for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its continuing due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony NorthStar Credit Real Estate, Inc.)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence. Subject to the provisions of Section 6.18, such right of inspection and the exercise of such right shall not constitute a waiver by Purchaser of any representation, warranty, covenant or agreement of Seller which might, or should have been disclosed by such inspection. In addition, Seller shall cooperate with Purchaser in facilitating its Due Diligence inquiry.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to PurchaserPurchaser or if Purchaser otherwise determines for any reason not to acquire the Property, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before 5:00 p.m. (C.S.T.) on the last day of the Due Diligence Period. If Purchaser does not timely deliver give notice of termination as aforesaid, Purchaser shall be deemed to have accepted the Xxxxxxx Money, Property and this Agreement shall automatically terminatecontinue in full force and effect. In the event of such termination, the Xxxxxxx Money less Seller Retention shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts. Seller shall terminate effective as of the Closing Date at its sole cost all Service Contracts which Purchaser elects not to assume in accordance with the manner provided hereinterms hereof.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests including, without limitation, environmental inspections, studies and tests, that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)testing, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, Seller which consent shall not be unreasonably withheldwithheld except that Seller may withhold consent to borings into the ground water in its sole and absolute discretion.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules law, or regulations or by law rule of any stock exchange to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationPurchaser agrees that all such information will be held in strict confidence.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective partners, trustees, beneficiaries, employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense expenses (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of or in connection with any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activitiesactivities in connection therewith, and in the event that the Property is disturbed or altered in any way as a result of such activities, . Purchaser shall promptly restore the Property to substantially its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include Notwithstanding any claimscontrary provision in this Section 3.2(f), losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costsin no event shall Purchaser have any obligation under this Section 3.2(f) resulting from the mere discovery of information on or a condition if it discovers any environmental contamination at the PropertyProperty in connection with its Due Diligence Activities. Furthermore, Purchaser agrees to maintain and cause any of its representatives or agents conducting any Due Diligence to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk occurrence coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 Dollars ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx the Seller, Heitman Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Texas Ltd. and their respective partners, trustees, beneficiaries, shareholders, members, employees, officers and directors as additional insuredsinsured parties. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller or an affiliate of Seller in connection with (A) this Agreement or in connection with Agreement, (B) the transaction contemplated by this Agreement, (C) the acquisition of the Property by Seller (other than environmental, engineering, soils and similar reports) or (D) any prior or current contemplated reorganization of Seller and certain affiliated funds, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above)or any of its affiliates, and (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections Section 3.2(e) shall survive termination of this Agreement, but not Closing, and Section 3.2(f) and such other designated provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement as specified herein (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mack Cali Realty Corp)
Due Diligence. (a) Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (which, in the case of appraisals shall not exceed one appraisal per year for any Mortgaged Property at the expense of the Seller, provided that Purchaser may obtain additional appraisals at its sole expense), the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (but not less than one (1) Business Day, unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Purchaser and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter designated by Purchaser in writing in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof reasonably requested by Purchaser in writing.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders reimburse Purchaser within ten (the "Indemnified Parties"10) harmless from and against Business Days after receipt of an invoice thereof for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' out-of-pocket fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, actually incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its continuing due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony Credit Real Estate, Inc.)
Due Diligence. Purchaser and its representatives 6.1 The Parties shall be permitted allowed up to enter upon the Property at any reasonable time and from time to time before including the Closing Date Date, which shall be referred to examine, inspect and investigate as the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The “Due Diligence shall be subject Period”, to satisfy themselves that:
1. the title to the termsCity Property and the ROW Property are good and free from restrictions, conditions mortgages, charges, liens and limitations set forth encumbrances except as otherwise specifically provided in this Section 3.2.Agreement and save and except for:
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter any registered restrictions or covenants that run with the Property to conduct its Due Diligence not less than 48 hours prior to City Property, provided that such entry; have been complied with, (ii) the date any registered municipal agreements and approximate time period are scheduled agreements with Seller; and publicly regulated utilities, provided that such have been complied with, (iii) Purchaser is any easements and rights-of-way, provided that such have been complied with, (iv) any qualifications, reservations, provisos and limitations contained in full compliance with or imposed by any applicable statute and/or any authority having jurisdiction over the insurance requirements set forth City Property provided that such have been complied with, (v) any discrepancies in Section 3.2(f) hereoftitle or possession which would be disclosed by an up-to-date survey; and
2. At Seller's electionthere are no outstanding orders, a representative of Seller shall be present during deficiency notices or directives issued by any entry by Purchaser federal, provincial or its representatives upon municipal authority affecting the City Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the and ROW Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and6.2 If, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during within the Due Diligence Period, Purchaser becomes aware the Parties notify each other or their Solicitors of any problem valid objection to title or defect in to any outstanding order, deficiency notice or directive or to the Property or any other aspect fact that the present use of the City Property and ROW Property may not be lawfully continued and which Purchaser determines makes the Property unsuitable Parties are unable or, in their discretion, determine not to Purchaserremove, Purchaser may terminate remedy or satisfy and which the Parties will not waive, this Agreement by giving written notice shall, notwithstanding any intermediate acts or negotiations in respect of termination any such matter, be at an end. Save as to Seller on or before the last day of any valid objection so made within the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have and except for any further obligations objection going to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all root of the Service Contractstitle, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser the Parties shall be conclusively deemed to have accepted the assumption 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 such Service Contract. Purchaser shall assume all any title deed, abstract, survey or other Service Contracts evidence of title to the City Property or ROW Property except as are in the manner provided hereincontrol 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) Purchaser 6.5 The Parties shall, upon request, forthwith deliver letters in a form satisfactory to the Parties addressed to such governmental authorities as may be reasonably requested by the Parties or their solicitors authorizing the release of any information as to compliance matters which such governmental authorities may have pertaining to the City Property or the ROW Property; provided, however, that nothing herein contained shall have be deemed to authorize or permit the right Parties to conductrequest 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 shall not use it for any purpose whatsoever.
6.6 There is no condition, at its sole cost and expenserepresentation or warranty of any kind, any inspectionsexpress or implied, studies or tests that Purchaser deems appropriate in determining the condition of the PropertyCity Property or ROW Property shall be appropriate for any particular use, providedunless expressly set out herein, howeveror that the present use by the Parties or the future intended use by the Parties is or will be lawful or permitted, Purchaser or that any sketch or survey delivered by the Parties is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part complete or accurate. Without limiting the generality of Purchaser's Phase I site assessment)the foregoing, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent this Agreement shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to affected by any third party (other than lenders, accountants, attorneys and other professionals and consultants change in connection with the transaction contemplated herein) zoning or use of the Exchange Properties prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationcompletion.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement
Due Diligence. Purchaser (a) The parties acknowledge and agree that SUMMO's purchase shall be based on SUMMO's independent investigation, inspection, examination, analysis, testing and evaluation of and pertaining to the Xxxxxxx Camp Property and, in that regard, SUMMO acknowledges and confirms that SELLER has not made any representations or warranties with respect to the nature, condition or status of the Xxxxxxx Camp Property other than those which are set forth and contained in this Agreement. SUMMO acknowledges the Xxxxxxx Camp Property is being sold in "AS IS" condition without warranty, expressed or implied except as specifically set forth herein.
(b) Accordingly, SUMMO and its lenders shall have up to one hundred fifty (150) days after the Effective Date within which to conduct their due diligence investigation of the Xxxxxxx Camp Property. During this period, SELLER shall permit representatives of SUMMO and its lenders to have free and unrestricted access to the Xxxxxxx Camp Property and to all Books, Records, and Accounts of SELLER, wherever located, relating to the Xxxxxxx Camp Property. The representatives of SUMMO and its lenders shall have the right to explore, sample, and test the Mining Property by drilling, geophysical and geochemical surveys, or other methods; provided, however, that such due diligence investigation shall be permitted conducted in accordance with all applicable laws and provided, further, that promptly after completion of any such activity, SUMMO shall return the Mining Property to enter upon essentially its prior condition. SUMMO's obligation to restore the Mining Property at to its prior condition shall continue in full force and effect and shall survive any reasonable time termination of this Agreement.
(c) SUMMO shall exercise all due diligence in safeguarding and from time to time before the Closing Date to examinemaintaining as confidential all data or information acquired during its due diligence investigation, inspect and investigate the Property as well as all records such data and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence information shall be subject to the termsConfidentiality Agreement and SUMMO shall not disclose any such information to any person unless such person is subject to and bound by the Confidentiality Agreement; provided, conditions however, that notwithstanding any other provision, the requirement for confidentiality shall be subject to the following exceptions:
(i) A disclosure to (1) an entity to which the rights of SUMMO have been assigned pursuant to Section 3.4(a) or a nominee of SUMMO under Section 3.4(b), including but not limited to the lenders of such entity or nominee; (2) any public or private financing agency or institution or financier; (3) any contractor or subcontractor that SUMMO (its assignee or nominee) engages to assist it with its due diligence; and limitations set forth (4) employees and consultants of SUMMO (its assignee or nominee) including attorneys, auditors, bankers, and other advisors. In any such case only such confidential information as such third party shall have a legitimate business need to know shall be disclosed. Before SUMMO makes any disclosure pursuant to this subsection (i), the third party shall first agree in this Section 3.2writing to protect the confidential information from further disclosure to the same extent as SUMMO is obligated hereunder.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) Confidential information that otherwise comes into the date and approximate time period are scheduled with Seller; and public domain.
(iii) Purchaser Confidential information that is required, in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's electionopinion of counsel for SUMMO (its parent, a representative of Seller shall be present during any entry by Purchaser assignee, or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liensnominee), materialmen's liens or other liens to be filed against disclosed to any federal, state, or local government or appropriate agencies and departments thereof or that is required, in the Property as a result opinion of its Due Diligencesuch counsel, to be publicly announced, to the extent required by law.
(biv) Purchaser shall have through the last day of the Due Diligence Period in which Confidential information required to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations be disclosed pursuant to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any rules or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination regulations of a Service Contract, Purchaser shall be deemed stock exchange or similar trading market applicable to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinSUMMO or its parent.
(d) Purchaser SUMMO or its lenders shall have bear all costs of its due diligence investigation, including the right to conductcosts of any exploration, at its sole cost sampling, and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; shall obtain all permits required for its due diligence investigation; and (ii) obtaining shall conduct its due diligence investigation in a manner so as not to interfere with the prior written consent of Seller, which consent shall not be unreasonably withheldnormal business operations.
(e) Purchaser agrees SUMMO waives and covenants with Seller not to disclose to any third party (other than lendersreleases all claims against SELLER, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employeesdirectors, officers, directors employees, and shareholders (the "Indemnified Parties") agents for injury to or death of persons or damage to property caused directly or indirectly by SUMMO's due diligence investigation except such as may result from SELLER's negligence or willful misconduct. SUMMO shall indemnify and hold SELLER, its directors, officers, employees, and agents harmless from and against any and all claims, costs, expenses, actions, suits, proceedings, losses, damagesdamages and liabilities, costs and expense (including, without limitation, including but not limited to reasonable attorneys' fees and court costs) suffered expenses, caused directly or incurred indirectly by any SUMMO's performance of its due diligence investigation of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Xxxxxxx Camp Property. The foregoing This release and indemnity does not include any claims, losses, damages, costs shall continue in full force and expenses (including, without limitation, reasonable attorneys' fees effect and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, and the "Surviving Obligations")purchase of the Xxxxxxx Camp Property.
Appears in 1 contract
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Due Diligence Contingency. Purchaser shall have a right period from the date of this Agreement until 5:00 p.m. (Central Time) on the date which is two (2) business days after the date of this Agreement (the "Due Diligence Period"), to enter upon perform its due diligence review of the Property for and all matters related thereto which Purchaser deems advisable, including, without limitation, engineering, environmental, financial, operational, employee and legal compliance matters. During the purpose of conducting its Due Diligence provided that Period, Purchaser shall also secure its financing commitment and, subject to the terms and conditions of this Agreement, negotiate with Manager concerning the contractual arrangement between Purchaser and Manager post-Closing. If Purchaser, in each such instance (i) Purchaser notifies Seller its sole discretion, is not satisfied with the results of its intent to enter due diligence review of the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) and all other matters related thereto, including the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any results of its representatives interfere efforts to obtain a financing commitment or to agree upon a contractual arrangement with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit Manager post-Closing, for any mechanic liensreason whatsoever, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day right to terminate this Agreement by providing written notice to Seller prior to the expiration of the Due Diligence Period (the "Due Diligence Contingency"). If Purchaser terminates this Agreement prior to the expiration of the Due Diligence Period, Escrow Agent shall refund the entire Deposit to Purchaser, and Seller and Purchaser shall have no further rights or obligations under this Agreement, except those which expressly survive such termination. If Purchaser does not terminate this Agreement pursuant to the Due Diligence Contingency prior to the expiration of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate accordance with this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service ContractSection 4.1(a), Purchaser shall be deemed to have accepted waived its rights to terminate this Agreement pursuant to the assumption of such Service Contract. Purchaser Due Diligence Contingency, in which case the entire Deposit shall assume all other Service Contracts be nonrefundable to Purchaser, except as otherwise expressly provided in the manner provided hereinthis Agreement.
(db) Purchaser Due Diligence Inspections. Purchaser, through its employees, agents and representatives ("Purchaser's Inspectors"), shall have the right to conductperform such examinations, at its sole cost tests, investigations and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the PropertyProperty (the "Inspections") as Purchaser reasonably deems advisable, in accordance with this Section 4.1, and Seller shall provide reasonable access to the Property for Purchaser's Inspectors to perform the Inspections; provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without that (i) submitting to Purchaser shall provide Seller and Manager with at least twenty-four (24) hours prior notice of each of the scope and inspections for such testingInspections; and (ii) obtaining Purchaser's Inspectors shall be accompanied by an employee, agent or representative of Seller or Manager; (iii) the prior written consent of Seller, which consent Inspections shall be coordinated with Manager and conducted by Purchaser's Inspectors between 7:00 a.m. and 7:00 p.m. (local Hotel time); (iv) Purchaser's Inspectors shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to perform any third party (drilling, coring or other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing invasive testing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosurewhich consent may be withheld in Seller's sole discretion, any (v) the Inspections shall not unreasonably interfere with the operations of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any wayHotel, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agentsInspectors shall comply with Seller's requests to minimize such interference; and (vi) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activitiesPurchaser's Inspectors shall carry, and in the event that the Property is disturbed or altered in any way as a result of such activitiesprovide Seller written evidence of, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coveragein amounts and on terms reasonably acceptable to Seller, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such which insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as Seller an additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Sellerinsured.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Apple Hospitality Five Inc)
Due Diligence. (a) Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets, the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at information relating to such Purchased Assets in the Property (collectivelypossession or under the control of such party; provided, "Due Diligence"). The Due Diligence shall be subject that prior to the termsoccurrence and continuance of an Event of Default, conditions and limitations set forth notwithstanding anything in this Section 3.2.
(a) Purchaser shall have a right Agreement to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's electioncontrary, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause contact any Mortgagor or permit Mezzanine Borrower of an Eligible Asset, any mechanic liens, materialmen's liens related sponsor or other liens obligor, any related tenant or any other loan party with respect to be filed against the Property as a result of its Due Diligenceproposed Transaction or a Purchased Asset, without Seller’s prior consent.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 Purchaser shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 26(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(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 under the control, of any Seller Party or any Affiliate thereof.
(e) Seller hereby acknowledges and agrees that Purchaser shall have the right to conduct, commission and order an Appraisal of any Mortgaged Property at its sole cost any time and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Propertyfrom time to time, provided, however, that Seller shall not be responsible for the costs and expenses incurred by Purchaser is not permitted in obtaining more than one Appraisal of any Mortgaged Property in any twelve (12) month period. Seller shall cooperate with Purchaser in connection with the commission or order of any Appraisal by Purchaser, and Seller shall use commercially reasonable efforts to perform cause the applicable Mortgagor or Mezzanine Borrower to cooperate with Purchaser in obtaining any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)such Appraisal, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) by providing Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates access to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationMortgaged Property.
(f) Purchaser Seller agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 26.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence examine, inspect, and investigate the Property and, in Purchaser's sole and absolute judgment and discretion, to determine whether the Property is acceptable satisfactory to PurchaserPurchaser and to obtain appropriate internal approval to proceed with this transaction. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement pursuant to this Paragraph 2.2 by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If This Agreement shall continue in full force and effect if Purchaser does not timely deliver give the Xxxxxxx Moneynotice of termination. Upon such termination, the Earnxxx Xxxey shall be refunded to Purchaser immediately upon request, and all further rights and obligations of the parties under this Agreement shall automatically terminate, except pursuant to any provisions which by their terms survive a termination of this Agreement. Purchaser shall have reasonable access to the Property and all books and records relating to the Property that are in Seller's or its property 35 manager's possession or control for the purpose of conducting surveys, architectural, engineering, geotechnical and environmental inspections and tests (including intrusive inspection and sampling with Seller's prior written consent not to be unreasonably withheld or delayed), and any other inspections, studies, or tests reasonably required by Purchaser. During the pendency of this Agreement, Purchaser and its agents, employees, and representatives shall have a continuing right of reasonable access to the Property and any offices where the records of the Property are kept for the purpose of examining and making copies of all books and records and other materials relating to the Property in Seller's or its property manager's possession or control. In the event course of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contractits investigations, Purchaser shall be deemed may make inquiries to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third parties, including, without limitation, a Phase II environmental assessment or boringtenants, without (i) submitting the Lender, contractors, property managers, parties to Seller the scope Service Contracts and inspections for such testing; and (ii) obtaining the prior written consent of Sellermunicipal, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys local and other professionals government officials and consultants in connection with the transaction contemplated herein) prior representatives, and Seller consents to Closing without Seller's prior written consent, unless such inquiries. Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to shall keep the Property or Seller in free and clear of any way, all of which shall be used by Purchaser liens and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to will indemnify, defend defend, and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and all claims asserted by third parties against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered Seller to recover for personal injury or incurred by any of the Indemnified Parties property damage as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors entry onto the Property. If any inspection or other agents) relating to test disturbs the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly will restore the Property to its condition existing prior to the commencement of before any such activities which disturb inspection or alter the Propertytest. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from obligations of Purchaser under the mere discovery of information on or a condition at preceding two sentences shall survive the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")Agreement.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Carramerica Realty Corp)
Due Diligence. (i) Purchaser shall have conducted a reasonably satisfactory due diligence investigation, including without limitation a review of the Company's business, financial, tax and its representatives shall be permitted to enter upon legal activities, of the Property at any reasonable time Company and from time to time before the Closing Date to examine, inspect and investigate Shares (the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"), and any issues which Purchaser may have arising from such Due Diligence have been reasonably satisfactorily resolved as contemplated by sub-paragraph (ii) below. The Such Due Diligence shall include, but need not be subject limited to, corporate records, financial records, tax, inventory (library), publisher's liability, compliance with public media and broadcasting laws, experience and status of contractual commitments with suppliers, agents and customers. For purposes of the Due Diligence, the Company shall provide to the termsCME Group and its officers, conditions employees, counsels, accountants, auditors, representatives and limitations set forth in this Section 3.2.
other approved agents as reasonably consented to by Sellers reasonable access during normal business hours throughout the period after the signing hereof and prior to the Closing, to all locations of the Company and the management of the Company and such books and records and other documents relating to the business of the Company as Purchaser reasonably deems necessary (a) Purchaser shall have a right to enter upon including, but not exclusively, Accounts audited by the Property for the purpose of conducting its Due Diligence Auditors); provided that in each such instance Purchaser agrees that (iw) Purchaser notifies Seller of its intent it shall not photocopy any documents relating to enter the Property Company provided to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon without the Property for conducting prior consent of Sellers or the Company, (x) a representative of the Company or Sellers shall be present in the data room where documents are made available to Purchaser and its Due Diligence. Purchaser representatives, (y) this process will be conducted in a manner designed to minimize disruption to the business of the Company and (z) to the extent practicable, such due diligence shall take all necessary actions to insure that neither it nor any be conducted off of its representatives interfere with the tenants or ongoing operations occurring premises of the Company at such place and on such terms as reasonably agreed among the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligenceparties.
(bii) Purchaser shall have through If, in the last day reasonable judgment of Purchaser, the Due Diligence Period in discloses any information not known to Purchaser at the date hereof regarding events or circumstances with respect to the Company which have or would reasonably be expected to conduct its Due Diligence andhave, in the aggregate, a Company Material Adverse Effect, then Purchaser shall advise Sellers of such fact and the parties shall engage in further negotiations to determine if Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaserconcerns can be resolved. If during the Due Diligence PeriodPurchaser's concerns are not, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaserits reasonable judgment, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Moneyresolved, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, then Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) so advise Sellers and Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by terminate this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Share Purchase Agreement (Central European Media Enterprises LTD)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) of Purchaser shall have a the right to enter upon at any time following the Property for Effective Date until 5:00 p.m., Washington, D.C. time on the purpose date that is thirty (30) days after the Effective Date or the earlier termination of conducting its this Agreement (the “Due Diligence provided that in each such instance (iPeriod”) Purchaser notifies Seller of its intent and upon reasonable notice and always never to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date disturb any occupants, visitors, or patrons thereat and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller (if Seller so determines) to enter the Real Property and perform its due diligence studies and examinations at all reasonable times during normal business hours including to enter upon, test, study, survey, inspect, and conduct engineering, architectural, Phase I environmental, Phase II environmental, geological, soil, economic and other tests on the Property as Purchaser deems necessary or desirable in order to evaluate the Property, to examine title to and surveys of the Property in the public record, and to meet with any governmental authorities. Under no circumstances shall Purchaser have right to, and Purchaser shall not make demand for, the documents or files of Seller. Within three (3) Business Days after the execution of this Agreement, Seller shall deliver to Purchaser all material documentation in Seller’s actual possession or control relating to the Property, including without limitation, all title work, surveys, property leases, zoning reports, permits, environmental reports, geotechnical reports or engineering reports and such other due diligence materials, as are listed on Schedule 3.1 attached hereto, (together, the “Due Diligence Materials”). If Seller has knowledge of the existence of other Due Diligence Materials, that Seller does not have in its actual possession, Seller shall deliver to Purchaser within the same three (3) Business Days a list of such Due Diligence Materials not produced but of which Seller has actual knowledge. Purchaser may, with written notice to Seller, elect to terminate this Agreement prior to the expiration of the Due Diligence Period, for any reason, without any consent required by Seller. In the event that Purchaser elects to terminate this Agreement, the Deposit shall be present during any entry by refunded to Purchaser or its representatives upon the Property for conducting its Due Diligence. in full and this Agreement shall be null and void and neither Seller nor Purchaser shall take have any further obligations hereunder except as may specifically survive such termination as set forth herein, provided Purchaser has returned all necessary actions Due Diligence Materials to insure Seller as well as a copy of all of the studies and analyses that neither it nor any Purchaser has received (internal and external) relative to Purchaser’s purchase of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liensacknowledges and agrees that, materialmen's liens or other liens to be filed against from and after the Property as a result expiration of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable will have no right to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Periodother than as expressly provided in this Agreement. If Purchaser does not timely deliver notify Seller prior to the Xxxxxxx Moneyend of the Due Diligence Period that Purchaser elects to purchase the Property, this Agreement shall automatically terminate. In terminate and the event of such termination, neither party Deposit shall have any further obligations immediately be returned to the other party hereunder, except for the Surviving ObligationsPurchaser.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence examine, inspect, and investigate the Property and, in Purchaser's sole and absolute judgment and discretion, to determine whether the Property is acceptable satisfactory to PurchaserPurchaser and to obtain appropriate internal approval to proceed with this transaction. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement pursuant to this Paragraph 2.2 by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If This Agreement shall continue in full force and effect if Purchaser does not timely deliver give the Xxxxxxx Moneynotice of termination. Upon such termination, the Earnxxx Xxxey shall be refunded to Purchaser immediately upon request, and all further rights and obligations of the parties under this Agreement shall automatically terminate, except pursuant to any provisions which by their terms survive a termination of this Agreement. Purchaser shall have reasonable access to the Property and all books and records for the Property that are in Seller's or its property manager's possession or control for the purpose of conducting surveys, architectural, engineering, geotechnical and environmental inspections and tests (including intrusive inspection and sampling), and any other inspections, studies, or tests reasonably required by Purchaser. During the pendency of this Agreement, Purchaser and its agents, employees, and representatives shall have a continuing right of reasonable access to the Property and any offices where the records of the Property are kept for the purpose of examining and making copies of all books and records and other materials relating to the Property in Seller's or its construction manager's possession or control. In the event course of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contractits investigations, Purchaser shall be deemed may make inquiries to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third parties, including, without limitation, a Phase II environmental assessment or boringany lender providing construction financing for the Improvements, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Sellercontractors, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenderssubcontractors, accountantsarchitects, attorneys engineers, and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates parties to the Project Agreements and municipal, local and other government officials and representatives, and Seller consents to such inquiries. Purchaser shall keep the Real Property free and clear of any liens arising by, through or Seller in any wayunder Purchaser, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to will indemnify, defend defend, and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and all claims asserted by third parties against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered Seller to recover for personal injury or incurred by any of the Indemnified Parties property damage as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors entry onto the Property. If any inspection or other agents) relating to test disturbs the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly will restore the Property to its condition existing prior to the commencement of before any such activities which disturb inspection or alter the Propertytest. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from obligations of Purchaser under the mere discovery of information on or a condition at preceding two sentences shall survive the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")Agreement.
Appears in 1 contract
Due Diligence. (a) Seller acknowledges that Purchaser, at reasonable times and upon reasonable notice to Seller, Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals not to exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and is continuing); provided 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 Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Xxxxxx agrees to cooperate with Xxxxxxxxx and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs reasonable and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, documented out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. (a) Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets, the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to cooperate with Purchaser and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' the fees and court costsexpenses of counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Realty Finance Trust, Inc.)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Due Diligence Contingency. Purchaser shall have a has completed all of its due diligence prior to the Effective Date. There is no due diligence contingency to this Agreement. Any additional inspections that Purchaser may elect to undertake pursuant to this Agreement are for its own information, but do not give rise to any right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent terminate this Agreement or give rise to enter the Property any condition to conduct its Due Diligence Closing not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements otherwise explicitly set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligenceherein.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to PurchaserInspections. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Moneythrough its employees, this Agreement shall automatically terminate. In the event of such terminationcontractors, neither party shall have any further obligations to the other party hereunderconsultants, except for the Surviving Obligations.
agents and representatives (c) Purchaser shall“Purchaser’s Inspectors”), at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conductperform such examinations, at its sole cost tests, investigations and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the PropertyProperty (the “Inspections”) as Purchaser reasonably deems advisable, in accordance with this Section 4.1, and Seller shall provide reasonable access to the Property for Purchaser’s Inspectors to perform the Inspections; provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without that (i) submitting to Purchaser shall provide Seller with at least one (1) Business Day prior written notice of each of the scope and inspections for such testingInspections; and (ii) obtaining Purchaser and its inspectors shall be accompanied by an employee, agent or representative of Seller; (iii) the Inspections shall be conducted by Purchaser’s Inspectors on a Business Day between 10:00 a.m. and 5:00 p.m. (Eastern Time); (iv) Purchaser’s Inspectors shall not perform any drilling, coring or other invasive testing, without Seller’s prior written consent of Seller, (which consent may be withheld in Seller’s sole discretion) and (v) the Inspections shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection interfere with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any operations of the reports or any other documentation or information obtained by Purchaser which relates Hotel, and Purchaser’s Inspectors shall comply with Seller’s requests with respect to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationInspections to minimize such interference.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chesapeake Lodging Trust)
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property or at the offices of Seller's property manager, Heitman Propertixx, Xxx., located at 9601 Wilshire Boxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (xx xxxxx xxxxce Seller's operating files for the Property shall be available for review) (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence (and, after the Due Diligence Period, to prepare to operate the Property) provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 36 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. ; and (iv) Purchaser shall not be permitted to conduct interviews with the tenants of the Property and shall not have access to areas of a tenant's space which such tenant deems to be a "sensitive area." At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives unreasonably interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Due Diligence. (a) From and after the date of this Agreement, the Seller shall permit the Purchaser and its representatives shall be permitted to enter upon inspect the Property at any reasonable time Premises (including, without limitation, all roofs, electric, mechanical and from time structural elements, and HVAC systems), to time before perform due diligence, soil analysis and environmental investigations, to examine the Closing Date to examine, inspect and investigate records of the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject with respect to the termsPremises, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon make copies thereof, at such reasonable times as the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon may request. Any such inspections shall be performed in a manner consistent with this Agreement and shall be performed in such a manner to minimize any interference with the Property for conducting its Due Diligenceuse of the Premises by Vaso. The Purchaser shall take provide the Seller with copies of all necessary actions to insure that neither it nor any of its representatives interfere written reports prepared by third party consultants with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations respect to the other party hereunderPremises. The Purchaser and its employees, except for the Surviving Obligations.
(c) Purchaser agents and representatives shall, at least thirty-one (31) days prior to the Closing Dateuntil Closing, notify Seller in writing requesting termination of any or keep all of the Service Contractssuch information, which are noted on Schedule 2 as being terminable upon thirty (30) days noticesampling, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost test results and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Propertyreports confidential, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of that Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without its agents and representatives may disclose such information and data (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lendersPurchaser's employees, accountants, attorneys attorneys, prospective lenders, investment bankers, underwriters, rating agencies, partners, consultants and other professionals and consultants advisors in connection with the transaction transactions contemplated hereinby this Agreement (collectively, "Representatives") prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property extent that such Representatives reasonably need to know such information and data in order to assist, and perform services on behalf of, Purchaser; (ii) to the extent required by any applicable statute, law, regulation or Seller governmental authority; (iii) in connection with any way, all of which shall be used by Purchaser and its agents solely litigation that may arise between the parties in connection with the transaction transactions contemplated herebyby this Agreement, and (iv) to any prospective transferee or assignee of Purchaser. In Notwithstanding the event prior sentence, information that is or becomes publicly available or is obtained by or furnished to Purchaser on a non-confidential basis shall not be subject to this Agreement is terminatedprovision. To the extent that the Purchaser damages or disturbs the Premises, this subsection 3.2(e) the Purchaser shall, to the extent practicable, return the same to substantially the same condition which existed immediately prior to such damage or disturbance. The Purchaser shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold harmless the Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claimsexpense, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered loss or incurred by any of damage which the Indemnified Parties Seller may incur as a result of any activities act or omission of the Purchaser (including activities of or its representatives, agents or contractors, other than any of Purchaser's employeesexpense, consultants, contractors loss or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons extent arising from any act or property resulting from omission of the Seller during any such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damageinspection. Such insurance indemnification agreement shall name Xxxxxxx Capital Management Corporation survive the termination of this Agreement.
("HCMC"b) and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser On or before the Effective Date, Seller shall deliver to Seller a copy Purchaser true and correct copies of all Contracts, affecting the certificate Premises, as well as the current Certificate of Occupancy, Seller's most recent title insurance effectuating policy and survey, any environmental and engineering reports in Seller's possession, the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) daysmost recent two years' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMCreal estate tax bills, and (iv) management agreementsVaso's most recent three years' financial statements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Due Diligence. (a) 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 be required), each Seller Counterparty shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller Counterparties, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Contributed Swingline Loan Documents, Servicing Records and any and all records documents, records, agreements, instruments or information relating to such Purchased Assets and other documentation provided by Seller Contributed Swingline Loans in the possession or located at under the Property (collectivelycontrol of such party; provided, "Due Diligence"). The Due Diligence shall be subject that prior to the termsoccurrence and continuance of an Event of Default, conditions and limitations set forth notwithstanding anything in this Section 3.2.
(a) Purchaser shall have a right Agreement to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's electioncontrary, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause contact any Mortgagor or permit Mezzanine Borrower of an Eligible Asset, any mechanic liens, materialmen's liens related sponsor or other liens obligor, any related tenant or any other loan party with respect to be filed against the Property as a result of its Due Diligenceproposed Transaction, Swingline Transaction or a Purchased Asset, without a Seller Counterparty’s prior consent.
(b) Each Seller Counterparty agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 26(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(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 under the control, of any Seller Party or any Affiliate thereof.
(e) Each Seller Counterparty hereby acknowledges and agrees that Purchaser shall have the right to conduct, commission and order an Appraisal of any Mortgaged Property at its sole cost any time and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Propertyfrom time to time, provided, however, that no Seller Counterparty shall be responsible for the costs and expenses incurred by Purchaser is not permitted in obtaining 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 perform cause the applicable Mortgagor or Mezzanine Borrower to cooperate with Purchaser in obtaining any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)such Appraisal, including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) by providing Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates access to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive terminationMortgaged Property.
(f) Purchaser Each Seller Counterparty agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 26.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Due Diligence. Purchaser 3.1 Due Diligence Period. From the date hereof, through and including 5:00 p.m. on February 1, 2007 (the "Due Diligence Period"), Buyer and its representatives officers, employees, agents, advisors, consultants, accountants, attorneys and engineers shall be permitted have the right, at Buyers’ expense, to inspect the Property, and shall have the right, and are hereby authorized, to enter upon the Property at any to conduct inspections and investigations relating to the Property, to conduct geo-technical and environmental assessments, inspection of mining claims, and for all other reasonable time purposes, and from time Buyer shall have the right and access to time before the Closing Date review all information and data related to examine, inspect and investigate the Property as well as in Seller’s possession or control, including without limitation all records drill hole electric logs, geologic maps, cross-sections, reports, maps and the like, and mining claim title documents, title reports and opinions, and any and all other documentation provided by Seller or located at the Property available data (collectively, "Due Diligence"). The Due Diligence shall be subject Buyer agrees to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property use reasonable dispatch to conduct its Due Diligence activities. If Buyer, in its sole and absolute discretion, is not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance satisfied with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result results of its Due Diligence.
(b) Purchaser Diligence then Buyer shall have through the last day of the Due Diligence Period in which right to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving serving written notice on Seller of termination its election to Seller terminate, at any time on or before the last day expiration of the Due Diligence Period. If Purchaser does not timely deliver Upon termination, xxxxxxx money deposits, if any, and all other things of value delivered by Buyer shall be returned to Buyer. All non-public information obtained under this Section during the Xxxxxxx Money, this Agreement Due Diligence Period shall automatically terminatebe treated as confidential. No information shall be disclosed to any other person or entity except as necessary to complete the transaction contemplated herein or by court order. In the event of such terminationthe Buyer makes the determination not to close on this transaction, neither party then all information received from Seller shall have any further obligations be returned to the other party hereunder, except Seller and this confidentiality provision shall remain in effect for the Surviving Obligations.
(c) Purchaser shall, at least thirty-a period of one (311) days prior to the year. On Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser Buyer shall no longer be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated bound by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsconfidentiality requirement.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Due Diligence. Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time before the Closing Date to examine, inspect and investigate the Property as well as all records and other documentation provided by Seller or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligence.
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence examine, inspect, and investigate the Property and, in Purchaser's sole and absolute judgment and discretion, to determine whether the Property is acceptable satisfactory to PurchaserPurchaser and to obtain appropriate internal approval to proceed with this transaction. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement pursuant to this Paragraph 2.2 by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If This Agreement shall continue in full force and effect if Purchaser does not timely deliver give the Xxxxxxx Moneynotice of termination. Upon such termination, the Earnxxx Xxxey shall be refunded to Purchaser immediately upon request, and all further rights and obligations of the parties under this Agreement shall automatically terminate, except pursuant to any provisions which by their terms survive a termination of this Agreement. Purchaser shall have reasonable access to the Property and all books and records for each Project that are in Seller's or its property manager's possession or control for the purpose of conducting surveys, architectural, engineering, geotechnical and environmental inspections and tests (including intrusive inspection and sampling with Seller's prior written consent not to be unreasonably withheld or delayed), and any other inspections, studies, or tests reasonably required by Purchaser. During the pendency of this Agreement, Purchaser and its agents, employees, and representatives shall have a continuing right of reasonable access to the Property and any offices where the records of the Property are kept for the purpose of examining and making copies of all books and records and other materials relating to the Property in Seller's or its property manager's possession or control. In the event course of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination of a Service Contractits investigations, Purchaser shall be deemed may make inquiries to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided herein.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third parties, including, without limitation, a Phase II environmental assessment or boringtenants, without (i) submitting to Seller any lender providing construction financing for the scope and inspections for such testing; and (ii) obtaining the prior written consent of SellerImprovements, which consent shall not be unreasonably withheld.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenderscontractors, accountantssubcontractors, attorneys architects, engineers, and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates parties to the Project Agreements and municipal, local and other government officials and representatives, and Seller consents to such inquiries. Purchaser shall keep the Property free and clear of any liens arising by, through or Seller in any wayunder Purchaser, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to will indemnify, defend defend, and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and all claims asserted by third parties against any and all claims, losses, damages, costs and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered Seller to recover for personal injury or incurred by any of the Indemnified Parties property damage as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors entry onto the Property. If any inspection or other agents) relating to test disturbs the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly will restore the Property to its condition existing prior to the commencement of before any such activities which disturb inspection or alter the Propertytest. The foregoing indemnity does not include any claims, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) resulting from obligations of Purchaser under the mere discovery of information on or a condition at preceding two sentences shall survive the Property. Furthermore, Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations")Agreement.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Carramerica Realty Corp)
Due Diligence. (a) Seller acknowledges that Purchaser, at reasonable times and upon reasonable notice to Seller, Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets (including obtaining updated or new appraisals not to exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and is continuing); provided 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 Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives shall be or permitted assigns to enter upon the Property at any reasonable time offices of Seller, such other Seller Party or Servicer, as the case may be, during normal business hours and from time to time before the Closing Date permit them to examine, inspect inspect, and investigate make copies and extracts of the Property as well as Purchased Asset Files, Servicing Records and any and all records and other documentation provided by Seller documents, records, agreements, instruments or located at the Property (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for the purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior information relating to such entry; (ii) Purchased Assets in the date and approximate time period are scheduled with Seller; and (iii) Purchaser is in full compliance with possession or under the insurance requirements set forth in Section 3.2(f) hereof. At Seller's election, a representative control of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives interfere with the tenants or ongoing operations occurring at the Property. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of its Due Diligencesuch party.
(b) Seller agrees that it shall, promptly upon reasonable request of Purchaser, deliver (or shall cause to be delivered) to Purchaser shall have through the last day and any of the Due Diligence Period in which to conduct its Due Diligence andagents, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware representatives or permitted assigns copies of any problem or defect documents permitted to be reviewed by Purchaser in the Property or any other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely deliver the Xxxxxxx Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsaccordance 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 shalland any of its agents, representatives or permitted assigns (i) in person at least thirty-one the time of any inspection pursuant to Article 28(a) or (31ii) days 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 foregoing Persons, or any other matters relating to the Closing Date, notify Seller in writing requesting termination of Transaction Documents or any or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Transaction that Purchaser does not elect wishes to assume. If Purchaser does not timely give notice requesting termination of a Service Contract, Purchaser shall be deemed to have accepted the assumption of discuss with such Service Contract. Purchaser shall assume all other Service Contracts in the manner provided hereinPerson.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall have may enter into Transactions with Seller based solely upon the right information provided by Seller to conductPurchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its sole cost and expenseoption, has the right at any inspections, studies time to conduct a partial or tests that Purchaser deems appropriate in determining the condition complete due diligence review on some or all of the Property, provided, however, Purchased Assets. Purchaser is not permitted may underwrite such Purchased Assets itself or engage a third-party underwriter to perform such underwriting. Seller agrees to cooperate with Purchaser and any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)third party underwriter in connection with such underwriting, including, without limitationbut not limited to, a Phase II environmental assessment providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or boringinformation relating to such Purchased Assets in the possession, without (i) submitting to or under the control, of any Seller the scope and inspections for such testing; and (ii) obtaining the prior written consent of Seller, which consent shall not be unreasonably withheldParty or any Affiliate thereof.
(e) Purchaser agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without Seller's prior written consent, unless Purchaser is obligated by New York Stock Exchanges rules or regulations or by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which relates to the Property or Seller in any way, all of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated hereby. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnify, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (the "Indemnified Parties") harmless from and against reimburse Purchaser on demand for any and all claims, losses, damages, costs reasonable and expense (including, without limitation, reasonable attorneys' fees and court costs) suffered or incurred by any of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, and in the event that the Property is disturbed or altered in any way as a result of such activities, Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claims, losses, damages, documented out-of-pocket costs and expenses (including, without limitation, the reasonable attorneys' fees and court costsexpenses of outside counsel) resulting from the mere discovery of information on or a condition at the Property. Furthermore, incurred by Purchaser agrees to maintain and have in effect workers' compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Xxxxxxx Capital Management Corporation ("HCMC") and Xxxxxxx Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy of the certificate of insurance effectuating the insurance required hereunder prior to the commencement of such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it shall have no right to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with its due diligence activities pursuant to this Agreement or in connection with the transaction contemplated by this Agreement, (ii) communications between Seller and HCMC (except as may be listed in paragraph 3.1 above), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, and (iv) management agreementsArticle 28.
(h) Sections 3.2(e) and 3.2(f) and such other provisions in this Agreement which expressly survive Closing or termination of this Agreement shall survive Closing or any termination of this Agreement (collectively, the "Surviving Obligations").
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
