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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Taubman Realty Group LTD Partnership), Purchase and Sale Agreement (Taubman Realty Group LTD Partnership), Purchase and Sale Agreement (Taubman Centers Inc)
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 ▇▇▇▇▇’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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Real Estate Purchase and Sale Agreement, Ground Lease Agreement, Purchase Agreement
Due Diligence. Purchaser and its representatives shall be permitted to enter upon have until May 2, 2006 (the Property at any reasonable time and from time to time before the Closing Date “Due Diligence Period”) in which to examine, inspect inspect, and investigate the Property as well as Properties and all records and other documentation provided by Seller or located at matters concerning the Property (collectivelyEntities, "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 ’s sole and absolute judgment and discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence PeriodProperty, Purchaser becomes aware of any problem or defect in the Property or any other aspect of Entities, the Property which Pertinent Information and Seller are satisfactory to Purchaser determines makes the Property unsuitable to Purchaser, proceed with this transaction. Purchaser may terminate this Agreement pursuant to this Section 2.2 for any reason by giving written notice of termination to Seller on or before the last day of the Due Diligence Period, and in the event Purchaser terminates this Agreement, Purchaser shall promptly thereafter return to Seller all documents that Seller shall have provided to Purchaser in connection with the Properties. If Purchaser does not timely deliver Upon such termination, the ▇E▇▇▇▇▇▇ MoneyMoney shall be refunded to Purchaser immediately upon request, and all further rights and obligations of the parties under this Agreement shall automatically terminate. In the event of terminate except for those that expressly survive such termination, neither party . This Agreement shall have any further obligations to continue in full force and effect if Purchaser does not give the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days written notice of termination 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 assumeDue Diligence Period. 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 terminate this Agreement prior to the condition expiration of the Property, provided, however, Due Diligence Period for both of the Properties. 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 have the right 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 terminate this Agreement for only one 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 herebyProperties. In the event that Purchaser elects to terminate this Agreement is terminated, pursuant to 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 activitiesSection 2.2, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ Properties of Florida Ltd. as additional insureds. Purchaser shall deliver return to Seller all copies of the Pertinent Information in Purchaser’s custody or control together with a copy of the certificate all due diligence studies performed by or on behalf of insurance effectuating the insurance required hereunder prior Purchaser with respect 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 SellerProperties. PURCHASER ACKNOWLEDGES THAT IT HAS COMPLETED ITS DUE DILIGENCE AND HAS ELECTED TO PROCEED WITH THIS TRANSACTION.
(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
Sources: Purchase and Sale Agreement (BioMed Realty Trust Inc), Purchase and Sale Agreement (Human Genome Sciences Inc)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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.
(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 5:00 p.m. Eastern Time on the last day of the Due Diligence Period in which to conduct examine, inspect and investigate the Property at its Due Diligence sole cost and expense, and, in Purchaser's ’s sole and absolute judgment and discretion, to determine whether the Property is acceptable to 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 by 5:00 p.m. Eastern Time on or before the last day of the Due Diligence Period. If this Agreement terminates pursuant to this Section 2.2(a), the Deposit, other than the Independent Consideration which shall be delivered to Seller, shall be refunded to Purchaser does not timely deliver by Title Company promptly upon request, and all further rights and obligations of the ▇▇▇▇▇▇▇ Money, parties under 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, those provisions which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that expressly survive termination. If Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination terminate this Agreement by the expiration of a Service Contractthe Due Diligence Period, Purchaser shall be deemed have no further right to have accepted terminate this Agreement pursuant to this Section 2.2(a), and the assumption of such Service Contract. Purchaser Deposit shall assume all other Service Contracts become non- refundable, except as otherwise provided in the manner provided hereinthis Agreement.
(db) Purchaser shall and Purchaser’s agents, employees, representatives, contractors, architects, engineers, consultants, appraisers, vendors, service providers, qualified intermediary, lenders, investors and designers (collectively, “Purchaser’s Representatives”) shall, during the Due Diligence Period, have reasonable access to the right to conductProperty during normal business hours for the purpose of conducting appraisals, at its sole cost surveys, architectural, engineering, geotechnical, and expenseenvironmental inspections and tests, any inspectionsall in accordance with applicable laws, studies or tests provided that Purchaser deems appropriate in determining the condition shall not be permitted to conduct physical or invasive testing that disturbs or removes any portion of the PropertyProperty (such as an environmental Phase II investigation) without Seller’s prior written consent. Unless, providedin each instance, howeverSeller expressly states in writing that Purchaser or a Purchaser’s Representative may access the Property without Seller present, Purchaser is not and Purchaser’s Representatives will only be 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, such access when accompanied by Seller or 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 representative of Seller, which consent shall not who will be unreasonably withheld.
(e) available during normal business hours to accompany 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 or Purchaser’s Representative. 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 will 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 liens, claims, lossesloss, damages, costs damage and expense liabilities suffered by or asserted against Seller (including, including without limitation, reasonable attorneys' fees and court costslimitation any damage to property or injury to persons) suffered or incurred by any of the Indemnified Parties as a result of any activities entry by Purchaser or Purchaser’s Representatives under this Section 2.2(b). Prior to any entry by Purchaser or Purchaser’s Representatives under this Section 2.2(b), Purchaser shall furnish to Seller evidence of general liability insurance coverage for Purchaser (including activities of and any of Purchaser's employees, consultants, contractors or other agents) relating to ’s Representative that will be entering onto the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, naming Seller and in the event that the Property is disturbed or altered in any way Purchaser each 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 insurancean additional insured, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) single limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death1,000,000.00 per occurrence, and property damageotherwise reasonably satisfactory to Seller. Such insurance shall name ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ Properties of Florida Ltd. as additional insureds. If any inspection or test disturbs or damages the Property, Purchaser shall deliver promptly repair and restore the Property to Seller a copy of substantially the certificate of insurance effectuating the insurance required hereunder same condition as existed prior to any such inspection or test. This Section 2.2(b) shall survive 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 or the Closing or Date.
(c) Upon any termination of this Agreement (collectivelyother than by reason of a default by Seller, the "Surviving Obligations")Purchaser shall furnish to Seller, without representation or warranty of any kind, any title insurance commitment, survey, environmental assessment report, physical condition report and other written due diligence materials obtained by Purchaser from third parties in pursuing Purchaser’s rights under this Section 2.2.
Appears in 2 contracts
Sources: 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.
(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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Asset Purchase Agreement (Invivo Corp), Asset Purchase Agreement (Invivo Corp)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Due Diligence. 2.2.1 Purchaser shall, at Purchaser’s sole cost and its representatives shall be permitted expense, have access to enter upon the Property at any reasonable time and from time (subject to time before the terms of this Agreement) until 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 but 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 only have through the last day of the Due Diligence Period in which to conduct its Due Diligence andto, in Purchaser's ’s sole and absolute judgment and discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period; provided however, Purchaser becomes aware of any problem or defect hereby waives all seismic hazard related due diligence inspections. Purchaser shall promptly notify Seller, in the Property or any other aspect writing, upon Purchaser’s receipt of the draft environmental site assessment with respect to the Real Property which Purchaser determines makes from Purchaser’s consultant. Notwithstanding anything to the Property unsuitable to Purchasercontrary in this Agreement, Purchaser may terminate this Agreement by giving written notice of termination to Seller on (“Due Diligence Termination Notice”), so long as such notice is received by Seller at or before 5:00 p.m. Pacific Time on the last day of the Due Diligence Period. Unless Purchaser timely delivers the Due Diligence Termination Notice to Seller, this Agreement shall continue in full force and effect and Purchaser shall have no further right or opportunity to terminate this Agreement pursuant to this Subsection 2.2.1. If Purchaser does not timely deliver this Agreement terminates pursuant to this Subsection 2.2.1, the ▇▇▇▇▇▇▇ MoneyMoney (but not the Independent Contract Consideration) shall be refunded to Purchaser immediately upon Purchaser’s written request, Purchaser shall return and/or deliver to Seller all documents, information, reports, etc., including without limitation the Property Information, provided in physical form by Seller, including Asset Manager, Property Manager and Broker, and all further rights and obligations of the parties under this Agreement shall automatically terminateterminate except any provisions which by their terms survive the termination of this Agreement. In the event Purchaser so elects to terminate this Agreement, then Purchaser shall also deliver to Seller, upon Seller’s written request, copies of such terminationall third party reports, neither party investigations and studies, other than economic analyses (collectively, the “Reports” and, individually, a “Report”) prepared for, and delivered to, Purchaser in connection with its due diligence review of the Property provided that Seller reimburses Purchaser for the actual cost incurred by Purchaser to obtain the Reports; provided that Seller shall have no right to receive such Reports if the transaction contemplated by this Agreement does not close as a result of a Seller default. Such Reports shall be delivered to Seller without any further obligations representation or warranty as to the completeness or accuracy of the Reports or any other matter relating thereto, and Seller shall have no right to rely on any Report without the written consent of the party hereunder, except for the Surviving Obligationspreparing same. Purchaser’s obligations under and pursuant to this Subsection 2.2.1 shall survive any termination of this Agreement.
2.2.2 Subject always to the terms of the Leases, including the rights of the tenants under and/or pursuant to such Leases, upon at least twenty-four (c24) Purchaser shallhours’ prior written notice to Seller, and after providing to Seller reasonably satisfactory evidence of appropriate liability insurance (i.e., at least thirty-one (31) days prior $1,000,000.00 in coverage pursuant to the Closing Datea commercial general liability insurance policy, notify written on an occurrence basis, issued by an insurance company reasonably acceptable to Seller in writing requesting termination and which includes a certificate of any or all of the Service Contractsinsurance naming Seller, which are noted on Schedule 2 Asset Manager and Property Manager 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 Contractadditional insureds), Purchaser shall have reasonable access to the Property for the purpose of conducting surveys, architectural, engineering, geotechnical and environmental inspections and tests (including, but subject to the qualifications, limitations and prohibitions set forth hereinbelow, intrusive inspection and sampling, if there is a reasonable basis for the same and provided Purchaser gives Seller two (2) business days’ prior notice of any intrusive inspection or sampling, Purchaser obtains Seller’s prior written consent which, with respect to intrusive inspection or sampling, may be deemed granted or withheld in Seller’s sole discretion and, prior to have accepted performing the assumption same, Purchaser delivers a certificate of such Service Contractinsurance to Seller evidencing that Purchaser has in place reasonable amounts of liability insurance for its activities on the Property and has named Seller, Asset Manager and Property Manager as additional insureds thereunder), and any other inspections, studies, or non-invasive tests reasonably required by Purchaser. Purchaser shall assume all and its agents, employees, and representatives shall, subject to the terms of this Agreement, have a continuing right of reasonable access to the Property during the pendency of this Agreement for the purposes permitted by this Agreement. In the course of its investigations, Purchaser may make (solely for the purpose of requesting copies of existing reports or the current zoning of the Property and without identifying the proposed sale) inquiries to third parties, such as municipal, local and other Service Contracts in government officials and representatives, and Seller consents to such inquiries, subject to the manner provided herein.
following: (da) Purchaser shall have the right to conductnot contact tenants or Seller’s lenders, at its sole cost and expense, any inspections, studies contractors 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, property managers 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’s consent, which consent shall not be unreasonably withheld.
, conditioned or delayed, but may (efor example) Purchaser agrees and covenants with be conditioned upon Seller not to disclose to any third party (other than lendersor Seller’s representative(s), accountantsif Seller so elects, attorneys and other professionals and consultants being present, either 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 person 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, telephone; 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.), Purchase and Sale Agreement (Rexford Industrial Realty, 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Agreement for Sale of Membership Interests (GMH Communities Trust), Agreement for Sale of Partnership Interests (GMH Communities 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 (collectively, "Due Diligence"). The Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 3.2.
(a) Purchaser For a period not to exceed ninety (90) days following the Effective Date of this Agreement (the “Due Diligence Period”), during normal business hours SPI shall have a right to enter upon make the Property available for the purpose of conducting its Due Diligence provided inspection. If there is any term(s) or provision(s) 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 conflicts with the insurance requirements set forth Agreements (as defined in Section 3.2(fsubsection 1(s) hereof. At Seller's election), a representative of Seller this Agreement 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 Diligencecontrol.
(b) Purchaser Notwithstanding any other provision of this Section 3.1 and its subparagraphs, Renegy shall have through the last day be solely responsible for conducting an independent investigation and verification of the Due Diligence Period in which to conduct its Due Diligence andEnvironmental Condition of the Property. Renegy shall inspect, in Purchaser's review and otherwise perform whatever acts Renegy deems necessary, at Renegy’s sole discretioncost and expense, to determine whether the condition of the Property is acceptable to Purchaserso that, after the Closing Date, Renegy may use, operate, repair and maintain the Property in its present location. If during the Due Diligence PeriodRenegy shall not test, Purchaser becomes aware collect or conduct environmental investigation of any problem or defect in the Property or remove any soil, groundwater or other aspect materials, until Renegy’s testing plans and procedures have been approved in writing by SPI which approval shall not be unreasonably withheld, however, reasonable grounds for withholding such approval shall include, but not be limited to, potential exacerbation of 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 ▇▇▇▇▇▇▇ 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 ObligationsEnvironmental Conditions and interference with SPI’s operations.
(c) Purchaser shall, at least thirty-one (31) days prior to the Closing Date, notify Seller in writing requesting termination of any or all Renegy’s investigation and inspection of the Service Contracts, which are noted Property shall not unreasonably interfere with SPI’s business or operations 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 hereinProperty.
(d) Purchaser Renegy shall bear all of its own costs, expenses, liabilities and charges incurred in connection with its access to Property and in connection with any reviews, inspections or investigations, pursuant to this Section 3.1.
(e) Renegy shall notify SPI no later than two (2) working days prior to any inspection of the Property. SPI 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, have a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for representative accompany Renegy during each 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 herebyinspection. In the event that this Agreement is terminated, this subsection 3.2(e) shall survive termination.5 – AGREEMENT FOR ENVIRONMENTAL CONDITIONS
(f) Purchaser agrees Renegy shall, promptly upon receipt by Renegy, provide to indemnify, defend SPI copies of all reports 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 activitiesstudies, and in the event that the Property is disturbed with respect to environmental investigations also raw data, collected 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 on behalf of Renegy in connection with this Agreement Renegy’s due diligence 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 matters addressed 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")Section 3.
Appears in 2 contracts
Sources: Assignment and Assumption of Environmental Agreement (Laidlaw Energy Group, Inc.), Assignment and Assumption of Environmental Agreement (Laidlaw Energy Group, Inc.)
Due Diligence. 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Stock Purchase Agreement (Progressive Corp/Oh/), Stock Purchase Agreement (Xl Group PLC)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Agreement of Purchase and Sale (Bureau of National Affairs Inc), Agreement of Purchase and Sale (Bureau of National Affairs 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Merger Agreement (American Radio Systems Corp /Ma/), Merger Agreement (American Tower Systems Corp)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase Agreement, Purchase Agreement (Ark Restaurants 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Mortgage Loan Participation Purchase and Sale Agreement (loanDepot, Inc.), Mortgage Loan Participation Purchase and Sale Agreement (loanDepot, Inc.)
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 ▇▇▇▇▇’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 ▇▇▇▇▇▇▇ 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 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 Due Diligence Inspections conducted by, on behalf of information on or a condition at the Property. Furthermorerequest of, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇. This indemnity provision shall survive termination or expiration of this Agreement. If any proceeding is filed for which indemnity is required hereunder, ▇▇▇▇▇ Properties of Florida Ltd. as additional insureds. Purchaser shall deliver agrees to Seller a copy of defend the certificate of insurance effectuating the insurance required hereunder prior indemnified party in such proceeding at its sole cost utilizing counsel satisfactory 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
Sources: 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 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 notice of termination. Upon such termination, the Earn▇▇▇ ▇▇▇▇▇▇▇ Moneyey 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Agreement of Purchase and Sale (Carramerica Realty Corp)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 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 Property and this Agreement shall continue in full force and effect. In the event of such termination, the ▇▇▇▇▇▇▇ Money, this Agreement Money shall automatically terminate. In the event of such termination, 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 ▇▇▇▇▇▇▇ the Purchaser Indemnified Parties and Heitman Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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. 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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance 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 and any of its agents, representatives or permitted assigns (i) in person at the time of any inspection pursuant to Article 27(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall have through 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 last day case may be, for the purpose of answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇▇▇▇ Moneyand any third party underwriter in connection with such underwriting, this Agreement shall automatically terminate. In 4895-1210-4939v.10 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 event of such terminationpossession, neither party shall have any further obligations to or under the other party hereundercontrol, 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 Seller Party 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 withheldAffiliate 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, actual costs and expenses (including, without limitation, reasonable attorneys' the actual 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, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 27.
(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
Sources: Master Repurchase Agreement (Principal Credit Real Estate Income Trust)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 notice of termination. Upon such termination, the Earn▇▇▇ ▇▇▇▇▇▇▇ Moneyey 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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. 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 Property and this Agreement shall continue in full force and effect. In the event of such termination, the ▇▇▇▇▇▇▇ Money, this Agreement Money less Seller Retention shall automatically terminate. In the event of such termination, 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 ▇▇▇▇▇▇▇ the Seller, Heitman Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Mack Cali Realty 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)
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)), 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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the 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 have through 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 last day case may be, for the purpose of answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of such termination, neither agrees to reasonably cooperate with Purchaser and any third party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) underwriter identified by 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 in connection with 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)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 withheld.Party or any Affiliate thereof. 158 BUSINESS.31481134.9
(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 159 BUSINESS.31481134.9 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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, Seller 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
Sources: Master Repurchase Agreement (Franklin BSP Real Estate Debt BDC)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Assignment Agreement (Behringer Harvard Reit I Inc)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation survive the termination of this Agreement.
("HCMC"b) and ▇▇▇▇▇▇▇ 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) 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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) 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 acknowledges its receipt of the 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 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 Article III, Purchaser acknowledges and agrees that the Submission Materials are provided without warranty or representation whatsoever.
(c) If, for any reason whatsoever (other than by reason of Seller’s default) Purchaser does not 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 through the last day 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 Due Diligence Period 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 conduct its Due Diligence andbe 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 Purchaser's sole discretion, accordance with this Agreement and other terms and conditions as may be reasonably required by Seller. Purchaser shall not permit any liens to determine whether attach to the Property by reason of such inspections. Solely to the extent damage to the Property is acceptable to Purchaser. If during the Due Diligence Periodcaused by Purchaser or Purchaser Parties, Purchaser becomes aware of shall (i) restore the Property, at its own expense, to substantially the same condition which existed prior to such damage, ordinary wear and tear excepted; and (ii) be responsible for and pay any problem and all liens by contractors, subcontractors, materialmen, or defect in laborers performing the Property inspections or any other aspect work on behalf of Purchaser or Purchaser Parties on or related to the Property which Property. Should any such lien or claim be recorded, Purchaser determines makes will promptly obtain its full release (or bond over same) as to Seller and the Property unsuitable Property. Purchaser shall maintain (or cause to be maintained), for the benefit of Purchaser, Purchaser may terminate this Agreement by giving written notice Seller, Seller’s Affiliates and managers insurance, on an occurrence basis in the amount of termination to Seller on or before $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 last day amount of the Due Diligence Period$2,000,000. If Purchaser does not timely deliver the Such policy shall 39148893v.18 name Seller, ▇▇▇▇▇▇▇ Money’s manager, and each of their subsidiaries, affiliate and parent companies, the respective successors and assigns of each of them, and the officers, directors, partners, members, shareholders, employees and agents of each of the foregoing, as additional insured parties, which insurance shall provide coverage against any claim for personal liability or property damage caused by Purchaser or Purchaser Parties in connection with such inspections. All policies that Purchaser is required to obtain under this Agreement shall automatically terminatebe issued by insurance companies authorized to do business in the State of California with a Financial Strength Rating of not less than “A” and a Financial Size Category of not less than Class “X”, as rated by the most current available “Best’s” Insurance Reports. Purchaser shall deliver to Seller a certificate evidencing the commercial general liability and property damage insurance before conducting any inspections on the Property. The provisions of this Section 2.4(d) shall survive any termination of this Agreement and a closing of the transaction contemplated hereby.
(e) On or prior to the Effective Date, Seller has delivered to Purchaser, a title insurance commitment issued by the Title Company covering the Real Property, binding the Title Company to issue the Owner’s Title Policy together with legible copies (to the extent such legible copies are available) of all documents identified in such title insurance commitment as exceptions to title (collectively, the “Title Commitment”), with respect to the state of title to the Property. If Purchaser receives any revisions to the Title Commitment or the Updated Survey ordered by Purchaser that include items which did not appear in the prior versions of the Title Commitment or Updated Survey, as applicable, and which were not requested or caused by or on behalf of Purchaser, then Purchaser shall have five (5) business days following its receipt of any such revision to object to any new matters first appearing or otherwise shown thereon in a notice of objection to be delivered to Seller (each, a “New Objection”) (it being understood and agreed that the Closing Date shall not be adjourned in order to permit Purchaser to avail itself of the entire five (5) business day period). Other than with respect to Monetary Title Encumbrances (which will be covered by a Monetary Encumbrance Release at Closing) as otherwise specifically required in this Agreement, Seller shall not be obligated to incur any expenses or incur any liability to cure any New Objections. Seller shall notify Purchaser within three (3) business days after receipt of notice of New Objections (“Seller’s Response Period”) whether Seller, in its sole discretion, agrees to attempt to cure any of such New Objections (“Seller’s Response”). If Seller agrees in Seller’s Response to attempt to cure any of such New Objections, Seller shall use good faith efforts (without the obligation to expend any money or incur any liability except with 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 if Seller is deemed to have elected not to attempt to cure New Objections pursuant to the preceding sentence, then within five (5) days after the expiration of Seller’s Response Period (it being understood and agreed that the Closing Date shall not be adjourned in order to permit Purchaser to avail itself of the entire five (5) day period, as 39148893v.18 applicable), Purchaser may elect (1) to waive any New Objections which Seller has elected or is deemed to have elected not to attempt to cure without any abatement in the Purchase Price, or (2) to terminate this Agreement in which case the Deposit shall be promptly returned to Purchaser and the parties hereto shall be released from all further obligations hereunder, except those which expressly survive a termination of this Agreement. In the event 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 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Braemar Hotels & Resorts 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Asset Capital Corporation, 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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) 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 Property 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 of such termination, the ▇▇▇▇▇▇▇ Money, this Agreement Money shall automatically terminate. In the event of such termination, 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 ▇▇▇▇▇▇▇ , (ii) UPV Corporation and Heitman Capital Management Corporation LLC ("HCMCHCM") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Glimcher Realty 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 (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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 or at the offices of Seller's property manager, Heitman Properti▇▇, ▇▇▇., located at 9601 Wilshire Bo▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇ ▇▇▇▇▇ ▇▇▇▇ce 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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. Purchaser a. Seller shall promptly, upon execution of this Agreement by both Parties, deliver to Buyer all documents and its representatives written information concerning the Personal Property and Contracts that Buyer may reasonably request and which is in Seller's possession or control, including without limitation copies of the Contracts. Prior to or on the Feasibility Date, Buyer shall deliver written notice to Seller of Buyer's approval or disapproval of the Personal Property and Contracts. If Buyer shall disapprove of the Personal Property and/or Contracts this Agreement shall immediately terminate, unless otherwise agreed to in writing by the Parties, and neither Party shall have any further obligations or liabilities to the other hereunder. If Buyer does not provide written notice to Seller as provided for herein approving or disapproving of the Personal Property and Contracts, Buyer's right to approve or disapprove of the Personal Property and Contracts shall be permitted deemed waived.
b. Seller expressly consents to enter Buyer entering upon the Property at any reasonable time and from time Premises after 24 hours prior notice 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 investigation of the Due Diligence Period in which to conduct its Due Diligence and, in Purchaser's sole discretion, to determine whether the Personal Property is acceptable to PurchaserBuyer deems appropriate. 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 ▇▇▇▇▇▇▇ Money, this Agreement Buyer 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 free 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 loss or liability (including, without limitation, reasonable attorneys' fees fees) arising solely and court costs) suffered or incurred by any of the Indemnified Parties as a result of any directly from such activities of Purchaser (including activities of any of Purchaser's employeesBuyer and its agents, 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 activitiescontractors, and in employees upon 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 Premises prior to the commencement of such activities which disturb or alter the Property. The foregoing indemnity does not include any claimsClosing, lossesprovided, damageshowever, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 for any loss or damage attributable to review the acts 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 omissions of Seller or HCMC, and (iv) management agreements.
(h) Sections 3.2(e) and 3.2(f) and such other provisions Seller's agents. Buyer's indemnity obligations as set forth in this Agreement which expressly survive Closing or termination of this Agreement Paragraph shall survive the Closing or any termination of this Agreement (collectivelyAgreement.
c. Unless otherwise specified, Buyer shall pay for all costs associated with its efforts to conduct an investigation of the "Surviving Obligations")Personal Property.
Appears in 1 contract
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 the Upon termination, ▇▇▇▇▇▇▇ Moneymoney deposits, if any, and all other things of value delivered by Buyer shall be returned to Buyer. All non-public information obtained under this Agreement Section during the 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 (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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Commvault Systems 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 3.23.2 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 Property in accordance with the terms and conditions of this Agreement and this Agreement shall continue in full force and effect. In the event of such termination, the ▇▇▇▇▇▇▇ Money, this Agreement including any interest thereon, shall automatically terminate. In the event of such termination, 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 ▇▇▇▇▇▇▇ JMB Institutional Apartment Limited Partnership-II, Heitman Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties of Florida 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
Sources: Purchase and Sale Agreement (Apple Residential Income Trust Inc)
Due Diligence. Purchaser (a) Borrower acknowledges that, at reasonable times and its representatives upon reasonable notice to Borrower, Class A Lender has the right to perform continuing due diligence reviews with respect to the Underlying Loan and the Borrower Parties for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Borrower agrees that no more than twice per calendar year (unless an Event of Default has occurred and is continuing), upon reasonable prior written notice from Class A Lender (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Borrower shall provide (or shall cause any other Borrower Party to provide) reasonable access to Class A Lender and any of its agents, representatives or permitted assigns to enter upon the Property at any reasonable time offices of Borrower or such other Borrower Party 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 Underlying Loan 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 information relating to the terms, conditions and limitations set forth Underlying Loan in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for possession or under the purpose control 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 Diligenceparty.
(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 ▇▇▇▇▇▇▇▇ Moneyagrees that it shall, this Agreement promptly upon reasonable request of Class A Lender, deliver (or shall automatically terminate. In the event cause to be delivered) to Lender and any of such terminationits agents, neither party shall have representatives or permitted assigns copies of any further obligations documents permitted to the other party hereunder, except for the Surviving Obligationsbe reviewed by Class A Lender in accordance with Article 26(a).
(c) Purchaser shall▇▇▇▇▇▇▇▇ agrees to make available to Class A Lender and 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 Borrower, such other Borrower Party 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 any Loan Documents or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Loan that Purchaser does not elect Class A Lender 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) Purchaser Without limiting the generality of the foregoing, Borrower acknowledges that Lender may enter into the Loan with Borrower based solely upon the information provided by Borrower to Class A Lender and the representations, warranties and covenants contained herein, and that Class A Lender, at its option, has the right at any time to conduct a partial or complete due diligence review on the Underlying Loan. Class A Lender may underwrite the Underlying Loan itself or engage a third-party underwriter to perform such underwriting; provided, however, that if such underwriting reveals a “Default” and/or “Event of Default” as defined in the Underlying Loan Documents, such “Default” or “Event of Default” will not result in a Default and/or Event of Default hereunder unless the matter revealed is independently a Default and/or Event of Default under the Loan Documents. ▇▇▇▇▇▇▇▇ agrees to reasonably cooperate with Class A Lender and any third party underwriter in connection with such underwriting, including, but not limited to, providing Class A Lender and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to the Underlying Loan in the possession, or under the control, of any Borrower Party or any Affiliate thereof.
(e) Subject to the terms of the Underlying Loan Documents, ▇▇▇▇▇▇▇▇ hereby acknowledges and agrees that Class A Lender shall have the right right, subject to conductthe terms and conditions of the Underlying Loan Documents, to commission and order an Appraisal of the Underlying Mortgaged Property at any time and from time to time, at its Class A Lender’s sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining . Subject to the condition terms of the PropertyUnderlying Loan Documents, provided(i) Borrower shall reasonably cooperate with Lender in connection with the commission or order of any Appraisal by Class A Lender and, however(ii) during any period of time commencing after Class A Lender notifies Borrower in writing that Borrower must comply with this clause (ii), Purchaser is not permitted Borrower shall use commercially reasonable efforts to perform cause the Underlying Mortgagor to cooperate with Class A Lender 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 boringby providing Lender with access to the Underlying Mortgaged Property, without (i) submitting subject 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 terms 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 terminationUnderlying Whole Loan Documents.
(f) Purchaser ▇▇▇▇▇▇▇▇ agrees to indemnify, defend reimburse Class A Lender on demand for reasonable 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, 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, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 incurred by or for Seller Class A Lender 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
Sources: Loan and Security Agreement (Cim Real Estate Finance Trust, 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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the 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 have through 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 last day case may be, for the purpose of answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of and any third party underwriter in connection with 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)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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 (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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Colony Credit Real Estate, Inc.)
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)), 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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the 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 have through be required and there shall be no limitation on frequency), by 164 BUSINESS.31481134.1132540646.2 phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the last day case may be, for the purpose of 165 BUSINESS.31481134.1132540646.2 answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of such termination, neither agrees to reasonably cooperate with Purchaser and any third party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) underwriter identified by 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 in connection with 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)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 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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, Seller 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
Sources: Master Repurchase Agreement (Franklin BSP Real Estate Debt BDC)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Acquisition Agreement (Pennsylvania Real Estate Investment Trust)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Benefit Street Partners Realty Trust, Inc.)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (TPG RE 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 (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)), 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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the 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 have through be required and there shall be no limitation on frequency), by 156 BUSINESS.32732337.7 phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the last day case may be, for the purpose of answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person. 157 BUSINESS.32732337.7
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of such termination, neither agrees to reasonably cooperate with Purchaser and any third party shall have any further obligations to the other party hereunder, except for the Surviving Obligations.
(c) underwriter identified by 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 in connection with 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)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 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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, Seller 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
Sources: Master Repurchase Agreement (Franklin BSP Real Estate Debt, 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Real Property Sale and Purchase Agreement (Symmetry Medical 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Agreement of Purchase and Sale (Apple Hospitality Five Inc)
Due Diligence. Purchaser From and its representatives after the date hereof through and including December 23, 2004 (the "Due Diligence Period"), Purchasers, their agents, consultants and employees shall be permitted to enter have the right upon the Property at any reasonable time terms 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 hereinafter 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 making non-invasive inspections at Purchasers’ sole risk, cost and expense. Purchasers covenant that: (i) Purchaser notifies Seller all physical tests shall be conducted and performed in compliance with all applicable laws, ordinances and regulations of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entryall governmental authorities having jurisdiction; (ii) Purchasers shall notify Sellers three (3) business days prior to any physical tests being performed and provide Sellers with a description and/or protocol of the date test to be performed; (iii) all tests shall be conducted in a safe manner; (iv) all tests shall be conducted by experienced, reputable and approximate time period are scheduled with Sellerappropriately licensed parties; and (v) all such inspections and tests shall be performed by Purchasers, their agents and employees in a manner to minimize interference with any of the tenants under the Leases. Sellers shall permit Purchasers to meet with any tenant that occupies in excess of 19,000 rentable square feet; provided, however, (i) Sellers or Sellers’ agent shall have the right to be present at each tenant meeting, (ii) Purchasers shall only be permitted one meeting with each tenant, (iii) Purchaser is in full compliance Purchasers shall provide Sellers with the insurance requirements not less than two (2) business days prior written notice of any requested meeting and (iv) Sellers shall coordinate any tenant meetings. Except as set forth in Section 3.2(f) hereofthe preceding sentence, Purchasers shall not have the right to speak to any other tenants under the Leases. At Seller's electionThe inspections by Purchasers may include non-invasive Phase I environmental inspections of the Property, a representative but no Phase II environmental inspections or other invasive inspections or sampling of Seller soil or materials shall be present during any entry performed without the prior written consent of Sellers, which may be withheld in their respective sole and absolute discretion. If consented to by Purchaser or its representatives Sellers, the proposed scope of work and the party who will perform the work shall be subject to Sellers’ review and approval. All of Purchasers’ entries upon the Property for conducting its Due Diligence. Purchaser shall take all necessary actions be at reasonable times, during normal business hours, and with not less than twenty-four (24) hours prior notice to insure that neither it nor Sellers or Sellers’ agent, and Sellers or Sellers’ agent shall have the right to accompany Purchasers during any of its representatives interfere with the tenants or ongoing operations occurring activities performed by Purchasers at the Property. Purchaser At Sellers’ request, Purchasers shall provide Sellers (at no cost to Sellers) with a copy of the results of any tests and inspections made by Purchasers. Purchasers agree at all times during the entries onto the Property that Purchasers and their contractors will carry comprehensive general liability insurance on an occurrence basis (including contractual liability, contractor’s protective liability, personal injury and property damage coverage) in a combined single limit of at least $2,000,000, with a deductible of no more than $25,000, employer’s liability in the amount of $500,000 (each accident) and the statutory limit with respect to workers’ compensation and provide Sellers with evidence of such insurance coverage prior to any entry onto the Property. Each such policy shall also name Sellers, Lender, LCOR Asset Management Limited Partnership and such other parties designated by Sellers in writing as additional insureds. Purchasers shall repair any and all damage to the Property or to any tenants’ property caused by such inspections or investigations in a timely manner, shall keep the Property free of any mechanic’s or materialman’s liens arising out of any such entry and shall indemnify Sellers from and against any liability arising from Purchasers’ physical inspections and testing. Purchasers further agree that on or before the expiration of the Due Diligence Period should Purchasers desire not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against purchase the Property as a result of its their review of the Due Diligence.
(b) Purchaser Diligence Items, or as a result of Purchasers’ dissatisfaction with the Property or for any other reason whatsoever, Purchasers shall have through the last day right to terminate this Agreement upon written notice to Sellers and in such case the parties shall direct the Escrow Holder to return the Deposit to Purchasers and the parties shall be released from any further obligations hereunder (except for those obligations that expressly survive termination of this Agreement). Failure to notify Sellers prior to the expiration of the Due Diligence Period in which (TIME BEING OF THE ESSENCE AS TO SELLERS’ RECEIPT OF PURCHASER’S NOTICE PRIOR TO THE END OF THE DUE DILIGENCE PERIOD) shall act as Purchasers’ election to conduct its Due Diligence and, in Purchaser's sole discretion, waive this right 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 ▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall that Purchasers have any further not complied with their obligations to the other party hereunder, except for the Surviving Obligations.
(c) Purchaser shall, at least thirty-one (31) days prior repair any damage to the Closing DateProperty caused by Purchasers’ investigation or inspection, 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 then Sellers shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining direct the condition Escrow Holder to reduce the amount of the Property, provided, however, Purchaser is not permitted to perform any intrusive testing (except for limited asbestos sampling First Deposit to be done returned to Purchasers by the amount necessary to repair such damage, as part such amount is reasonably estimated by Sellers. Sellers shall provide Purchasers and Escrow Holder with documentation substantiating the repair work necessary to be performed as a result of Purchaser's Phase I site assessment), including, without limitation, a Phase II environmental assessment Purchasers’ inspection 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 Contract is terminatedterminated for any reason, this subsection 3.2(ePurchasers shall promptly return to Sellers all Due Diligence Items previously furnished by Sellers and, if requested by Sellers, all reports prepared by Purchasers or Purchasers’ consultants at no cost to Sellers. Purchasers shall be permitted to inspect the Property within five (5) 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 business days prior to the Property, including, without limitation, mechanics' liens, damage Closing Date to the Property, injury to persons or property resulting from such activities, and in the event confirm that the Property is disturbed has been maintained in accordance with the requirements of this Agreement; such inspection shall be at reasonable times, during normal business hours and with not less than two (2) business days prior to notice to Sellers or altered Sellers’ agent, and Sellers or Sellers’ agent shall have the right to accompany Purchasers during any such inspection. Between the expiration of the Due Diligence Period and Closing, Purchasers may request in any way as a result of such activities, Purchaser shall promptly restore writing to show the Property to its condition existing prior to the commencement prospective tenants, Sellers approval of same may not be unreasonably withheld, conditioned or delayed; provided, however, such activities which disturb or alter the Property. The foregoing indemnity does not include any claimsrequest by Purchasers shall be at reasonable times, losses, damages, costs during normal business hours 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 two ($1,000,000.002) for personal injury, including bodily injury and deathbusiness days prior notice to Sellers or Sellers’ agent, and property damage. Such insurance shall name ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 Sellers or modified without at least thirty (30) days' prior written notice to Seller.
(g) Purchaser acknowledges and agrees that it Sellers’ agent shall have no the right to review or inspect accompany Purchasers during 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 agreementssuch showing.
(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
Sources: Agreement of Purchase and Sale of Partnership Interests (Mack Cali Realty 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 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 Property in accordance with the terms and conditions of this Agreement and this Agreement shall continue in full force and effect. In the event of such termination, the ▇▇▇▇▇▇▇ Money, this Agreement Money shall automatically terminate. In the event of such termination, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (CBL & Associates Properties 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Fortress Credit Realty Income Trust)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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. (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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the 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 have through 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 last day case may be, for the purpose of answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of and any third party underwriter in connection with 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)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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Agreement of Sale (Green Mountain Coffee Roasters 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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the 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 have through 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 last day case may be, for the purpose of answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of and any third party underwriter in connection with 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)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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. On or before the Effective Date, and subject to the terms and conditions of the Non-Disclosure Agreement, Seller shall have given Purchaser access to the transaction data room, which will contain all relevant and its representatives shall be permitted material documents and records with respect to enter upon the Properties, including all Leases and amendments thereto, Ground Leases, Contracts, Licenses and Permits and other materials pertaining to 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 set forth on Exhibit N hereto in Seller’s possession or located at the Property control (collectively, "Due Diligence"the “Records”). 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 During the Due Diligence Period, Purchaser becomes aware of any problem or defect and subject to the confidentiality and non-disclosure obligations contained herein and in the Property or any other aspect Non-Disclosure Agreement, Purchaser shall make a complete review of the Property which Purchaser determines makes Records as well as the Property unsuitable to Purchaserphysical, legal, economic and environmental condition of the Properties, including the Ground Leases and the Leases. Purchaser may terminate this Agreement by giving providing written notice of termination to Seller on or before the last day expiration of the Due Diligence Period. If Purchaser does not timely deliver , and upon delivery of such notice, this Agreement shall terminate, and the ▇▇▇▇▇▇▇ Money, this Agreement Money shall automatically terminate. In the event of such termination, neither party shall have any further obligations be refunded 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 assumePurchaser. If Purchaser does not timely give delivers to Seller an affirmative notice requesting termination of a Service Contract, Purchaser shall be deemed electing to have accepted waive due diligence and proceed to Closing on or before 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 expiration of the PropertyDue Diligence Period, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ Properties of Florida Ltd. Money immediately shall become non-refundable to Buyer, except as additional insuredsexpressly provided to the contrary herein. If Purchaser shall deliver does not provide an affirmative notice to Seller proceed or a copy of the certificate of insurance effectuating the insurance required hereunder termination notice on or 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 expiration of the following: (i) internal memorandaDue Diligence Period, correspondence, analyses, documents or reports prepared by or for Seller in connection with Purchaser will be deemed to have elected to 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 set forth 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
Sources: Purchase and Sale Agreement (Investors Real Estate Trust)
Due Diligence. Purchaser 2.1 The Supplier acknowledges that it:
2.1.1 has made and shall make its representatives own enquiries to satisfy itself as to the accuracy and adequacy of any information supplied to it by or on behalf of the Customer;
2.1.2 has raised all relevant due diligence questions with the Customer before the Effective Date; and
2.1.3 has entered into this Contract in reliance on its own due diligence alone.
2.2 The Supplier acknowledges that it has inspected the Operating Environment and has advised the Customer of any aspect of the Operating Environment that is not suitable for the provision of the Services in accordance with the terms of this Contract and that the specified actions to remedy such aspects of the Operating Environment, together with a timetable for and the costs of those actions, have been specified in the relevant parts of the Contract for the Pre-Operational Phase.
2.3 If the Supplier has either failed to inspect the Operating Environment or failed to notify the Customer of any required remedial actions in accordance with clause 2.2 then the Supplier shall not be entitled to recover any additional costs or charges from the Customer relating to any unsuitable aspects of the Operating Environment nor shall the Supplier be entitled to seek relief in respect of any Default arising from such failure except in relation to any latent structural defect in the Customer’s Premises. The onus shall be permitted on the Supplier to enter upon prove to the Property at Customer that any work to the Customer Premises is required in respect of a latent structural defect and the additional costs or charges are 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")necessary. The Due Diligence Supplier shall not incur such additional costs or charges without obtaining the Customer's prior written consent.
2.4 Any disputes relating to due diligence shall be subject resolved through the Dispute Resolution Procedure.
2.5 The Customer does not give any warranty or undertaking as to the termsrelevance, conditions and limitations set forth in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property completeness, accuracy or fitness for the any purpose of conducting its Due Diligence provided that in each such instance (i) Purchaser notifies Seller any of its intent to enter the Property to conduct its Due Diligence not less than 48 hours prior to such entry; (ii) Disclosed Data. Neither 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 Customer nor any of its representatives interfere with agents or employees shall be liable to the tenants Supplier in contract, tort (including negligence or ongoing operations occurring at the Property. Purchaser shall not cause breach of statutory duty), statute or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property otherwise as a result of its Due Diligence.of:
(b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its Due Diligence and2.5.1 any inaccuracy, in Purchaser's sole discretionomission, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware unfitness for purpose or inadequacy of any problem or defect kind whatsoever in the Property or Disclosed Data; or
2.5.2 any other aspect of the Property which Purchaser determines makes the Property unsuitable failure 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 ▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of such termination, neither party shall have any further obligations make available to the other party hereunderSupplier any materials, except for the Surviving Obligations.
(c) Purchaser shalldocuments, at least thirty-one (31) days prior to the Closing Datedrawings, 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 plans or other agents) information 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 Sellerthis Contract.
(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
Sources: It Managed Services 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 notice of termination. Upon such termination, the Earn▇▇▇ ▇▇▇▇▇▇▇ Moneyey 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Share Purchase Agreement (Central European Media Enterprises LTD)
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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: 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.
(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 Property and this Agreement shall continue in full force and effect. In the event of such termination, the ▇▇▇▇▇▇▇ Money, this Agreement Money shall automatically terminate. In the event of such termination, 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 ▇▇▇▇▇▇▇ the Purchaser Indemnified Parties and Heitman Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Agreement of Purchase and Sale of Partnership Interest (Urban Shopping Centers 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Purchase and Sale Agreement (Chesapeake Lodging 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 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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Seller agrees to make available (or to cause any other Seller Party or Servicer, as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i) in person at the 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 have through 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 last day case may be, for the purpose of answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of and any third party underwriter in connection with 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)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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, 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 not to exceed one appraisal per year for any Mortgaged Property so long as the related loan is not a Credit Risk 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. 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 ▇▇▇▇▇▇▇ 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 any 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. Each 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 such 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 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Blackstone Private Real Estate Credit & Income Fund)
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 5:00 p.m. Eastern Time on the last day of the Due Diligence Period in which to conduct examine, inspect and investigate the Property at its Due Diligence sole cost and expense, and, in Purchaser's ’s sole and absolute judgment and discretion, to determine whether the Property is acceptable to 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 by 5:00 p.m. Eastern Time on or before the last day of the Due Diligence Period. If this Agreement terminates pursuant to this Section 2.2(a), the Deposit, other than the Independent Consideration which shall be delivered to Seller, shall be refunded to Purchaser does not timely deliver by Title Company promptly upon request, and all further rights and obligations of the ▇▇▇▇▇▇▇ Money, parties under 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, those provisions which are noted on Schedule 2 as being terminable upon thirty (30) days notice, that expressly survive termination. If Purchaser does not elect to assume. If Purchaser does not timely give notice requesting termination terminate this Agreement by the expiration of a Service Contractthe Due Diligence Period, Purchaser shall be deemed have no further right to have accepted terminate this Agreement pursuant to this Section 2.2(a), and the assumption of such Service Contract. Purchaser Deposit shall assume all other Service Contracts become non-refundable, except as otherwise provided in the manner provided hereinthis Agreement.
(db) Purchaser shall and Purchaser’s agents, employees, representatives, contractors, architects, engineers, consultants, appraisers, vendors, service providers, qualified intermediary, lenders, investors and designers (collectively, “Purchaser’s Representatives”) shall, during the Due Diligence Period, have reasonable access to the right to conductProperty during normal business hours for the purpose of conducting appraisals, at its sole cost surveys, architectural, engineering, geotechnical, and expenseenvironmental inspections and tests, any inspectionsall in accordance with applicable laws, studies or tests provided that Purchaser deems appropriate in determining the condition shall not be permitted to conduct physical or invasive testing that disturbs or removes any portion of the PropertyProperty (such as an environmental Phase II investigation) without Seller’s prior written consent. Unless, providedin each instance, howeverSeller expressly states in writing that Purchaser or a Purchaser’s Representative may access the Property without Seller present, Purchaser is not and Purchaser’s Representatives will only be 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, such access when accompanied by Seller or 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 representative of Seller, which consent shall not who will be unreasonably withheld.
(e) available during normal business hours to accompany 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 or Purchaser’s Representative. 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 will 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 liens, claims, lossesloss, damages, costs damage and expense liabilities suffered by or asserted against Seller (including, including without limitation, reasonable attorneys' fees and court costslimitation any damage to property or injury to persons) suffered or incurred by any of the Indemnified Parties as a result of any activities entry by Purchaser or Purchaser’s Representatives under this Section 2.2(b). Prior to any entry by Purchaser or Purchaser’s Representatives under this Section 2.2(b), Purchaser shall furnish to Seller evidence of general liability insurance coverage for Purchaser (including activities of and any of Purchaser's employees, consultants, contractors or other agents) relating to ’s Representative that will be entering onto the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activities, naming Seller and in the event that the Property is disturbed or altered in any way Purchaser each 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 insurancean additional insured, with statutory limits of coverage, and commercial general liability insurance with (i) all risk coverage, (ii) waiver of subrogation, and (iii) single limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death1,000,000.00 per occurrence, and property damageotherwise reasonably satisfactory to Seller. Such insurance shall name ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ Properties of Florida Ltd. as additional insureds. If any inspection or test disturbs or damages the Property, Purchaser shall deliver promptly repair and restore the Property to Seller a copy of substantially the certificate of insurance effectuating the insurance required hereunder same condition as existed prior to any such inspection or test. This Section 2.2(b) shall survive 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 or the Closing or Date.
(c) Upon any termination of this Agreement (collectivelyother than by reason of a default by Seller, the "Surviving Obligations")Purchaser shall furnish to Seller, without representation or warranty of any kind, any title insurance commitment, survey, environmental assessment report, physical condition report and other written due diligence materials obtained by Purchaser from third parties in pursuing Purchaser’s rights under this Section 2.2.
Appears in 1 contract
Sources: 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, 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Realty 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 (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 and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance 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 and any of its agents, representatives or permitted assigns (i) in person at the time of any inspection pursuant to Article 27(a) or (ii) upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall have through 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 last day case may be, for the purpose of answering questions about any of the Due Diligence Period in which to conduct its Due Diligence andforegoing Persons, 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 matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the Property which foregoing, Seller acknowledges that Purchaser determines makes may enter into Transactions with Seller based solely upon the Property unsuitable 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 terminate this Agreement by giving written notice of termination underwrite such Purchased Assets itself or engage a third-party underwriter to Seller on or before the last day of the Due Diligence Periodperform such underwriting. If Purchaser does not timely deliver the ▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of and any third party underwriter in connection with 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)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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Master Repurchase Agreement (Fortress Credit Realty Income Trust)
Due Diligence. (a) The Seller further agrees to permit the Purchaser and its representatives shall be permitted to enter come upon the Property at any reasonable time to inspect the same and from time to time before the Closing Date to examine, inspect perform such tests and investigate the Property surveys and inspections as well as all records and other documentation provided may be required by Seller or located at the Property (collectively, "Due Diligence")Purchaser. 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 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 ▇▇▇▇▇▇▇ 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 within thirty (30) days noticeof the date hereof to terminate this Agreement for any reason in Purchaser’s sole and absolute discretion, that Purchaser does not elect upon written notice to assumeSeller. If Purchaser does not timely give fails to deliver such notice requesting termination prior to the conclusion of a Service Contractsuch thirty (30) day period, Purchaser shall be deemed to have waived any right to terminate this Agreement hereunder, and will 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“AS IS”. In the event that Purchaser terminates 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 activitiesAgreement, Purchaser shall promptly restore receive a return of all deposit monies paid. In 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 claimsevent Purchaser terminates this Agreement, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ Properties of Florida Ltd. as additional insureds. Purchaser shall deliver to Seller a copy all documentation and surveys regarding the tests performed. During the period this Agreement is in effect, and prior to Purchaser’s entering the Property, Purchaser shall provide Seller with proof that all of the certificate activities to be conducted upon the Property by Purchaser’s representatives shall be covered by liability insurance coverage naming Seller as an additional insured with respect to the Property and having a combined single limit of insurance effectuating not less than $1,000,000.00 with at least $3,000,000.00 excess liability coverage. Purchaser shall repair any damage caused by such testing and shall restore the insurance required hereunder Property to the same condition as existed immediately prior to such testing or surveys. Purchaser agrees to indemnify and hold Seller harmless from any liability from any and all activities on 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 SellerProperty conducted by Purchaser until closing.
(gb) Purchaser agrees and acknowledges that, except for the due diligence period set forth in Paragraph 11(a), and agrees that it shall have the conditions set forth in Paragraph 16 below, there are no right other contingencies of any kind or nature whatsoever upon which Purchaser’s obligation to review or inspect any of the following: (i) internal memoranda, correspondence, analyses, documents or reports prepared by or for Seller in connection with close title 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 agreementsis dependent.
(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 5:00 p.m. Eastern Time on the last day of the Due Diligence Period in which to conduct examine, inspect, study, test and investigate the Property and the Documents at its Due Diligence sole cost and expense, and, in Purchaser's ’s sole and absolute judgment and discretion, to determine whether the Property is acceptable to 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 by 5:00 p.m. Eastern Time on or before the last day of the Due Diligence Period. If this Agreement terminates pursuant to this Section 2.2(a), (i) the Refundable Portion shall be refunded to Purchaser by Title Company promptly upon request; (ii) the balance of the Deposit, including the Independent Consideration, shall be delivered to Seller by Title Company promptly upon request; and (iii) all further rights and obligations of the parties under this Agreement shall terminate, except those provisions which expressly survive termination. Notwithstanding the foregoing, if Purchaser terminates this Agreement in accordance with this Section 2.2(a) as a result of a matter disclosed in the Phase I or in accordance with Section 3.2, the entire Deposit, other than the Independent Consideration which shall be delivered to Seller, shall be refunded to Purchaser by Title Company promptly upon request, and all further rights and obligations of the parties under this Agreement shall terminate, except those provisions which expressly survive termination. If Purchaser does not timely deliver the ▇▇▇▇▇▇▇ Money, elect to terminate this Agreement shall automatically terminate. In by the event expiration of such terminationthe Due Diligence Period, neither party Purchaser shall have any no further obligations right to terminate this Agreement pursuant to this Section 2.2(a) and the entire Deposit shall become non-refundable, except as otherwise provided in this Agreement.
(b) Purchaser and Purchaser’s agents, employees, representatives, contractors, architects, engineers, consultants, appraisers, lenders and designers (collectively, “Purchaser’s Representatives”) shall, during the Due Diligence Period, have reasonable access to the other party hereunder, except Property during normal business hours in a manner as not to unreasonably disturb tenants for the Surviving Obligationspurpose of conducting appraisals, surveys, architectural, engineering and environmental inspections, examinations, studies, investigations and tests, all in accordance with applicable laws, provided that Purchaser shall not be permitted to conduct physical or invasive testing that disturbs or removes any portion of the Property (such as an environmental Phase II investigation) without Seller’s prior written consent. Purchaser and Purchaser’s Representatives will only be permitted such access when accompanied by Seller or a representative of Seller, who will be available during normal business hours to accompany Purchaser or Purchaser’s Representatives. Purchaser will indemnify, defend and hold Seller harmless from all liens, claims, losses, damages and liabilities suffered by or asserted against Seller (including without limitation any damage to property or injury to persons) (collectively, “Losses”) as a result of any entry by Purchaser or Purchaser’s Representatives under this Section 2.2(b), but specifically excluding any Loss incurred as a result of the mere discovery of any pre-existing condition on the Property or the gross negligence or willful misconduct of Seller or its directors, partners, officers, employees, representatives, agents or consultants. Prior to any entry by Purchaser or Purchaser’s Representatives under this Section 2.2(b), Purchaser shall furnish to Seller evidence of liability insurance maintained by Purchaser or Purchaser’s Representatives with coverages and limits reasonably satisfactory to Seller. All such policies shall name Seller as an additional insured. If any inspection or test disturbs or damages the Property (except to the extent such disturbance or damage results from a pre-existing condition or the gross negligence or willful misconduct of Seller or its directors, partners, officers, employees, representatives, agents or consultants), Purchaser shall promptly repair and restore the Property to substantially the same condition as existed prior to any such inspection or test. This Section 2.2(b) shall survive the termination of this Agreement or the Closing Date, as applicable, for a period of nine months.
(c) Purchaser shalland Purchaser’s Representatives shall have a continuing right of reasonable access during normal business hours to the Property during the pendency of this Agreement in a manner as not to unreasonably disturb the tenants under the Leases, at least thirtyand the right to examine and make copies of all books of account and records and other materials relating to the Property in Seller’s or its property manager’s possession and the right to conduct a “walk-one (31) days through” of the Property prior to the Closing Date, notify Seller Date in writing requesting termination of any or all of a manner as not to unreasonably disturb the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, tenants; provided that Purchaser does not elect and Purchaser’s Representatives will only be permitted access when accompanied by Seller or a representative of Seller, who will be available during normal business hours to assume. If accompany 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 hereinor Purchaser’s Representative.
(d) Purchaser shall have the right to conduct, at its sole cost and expense, Upon any inspections, studies or tests that Purchaser deems appropriate in determining the condition termination 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 (this Agreement other than lenders, accountants, attorneys and other professionals and consultants in connection with the transaction contemplated herein) prior to Closing without by reason of a default by 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ Properties of Florida Ltd. as additional insureds. Purchaser shall deliver furnish to Seller a copy of the certificate all third-party reports, studies and investigations undertaken on behalf of insurance effectuating the insurance required hereunder prior Purchaser with respect to the commencement of Property (the “Third Party Reports”), “as is” without representation or warranty from Purchaser as to accuracy or completeness; provided, however, that Purchaser shall only be obligated to deliver the Third Party Reports to Seller in the event the applicable vendors agree to release such activities which certificate shall provide that such insurance shall not be terminated or modified without at least thirty (30) days' prior written notice Third Party Reports to Seller.
(g) Purchaser acknowledges and agrees that it . Purchaser’s obligations under the immediately preceding sentence 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
Sources: Purchase and Sale Agreement (Resource Real Estate Opportunity REIT II, Inc.)
Due Diligence. Purchaser (a) Borrower acknowledges that, at reasonable times and its representatives upon reasonable notice to Borrower, Class A Lender has the right to perform continuing due diligence reviews with respect to the Underlying Loan and the Borrower Parties for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Borrower agrees that no more than twice per calendar year (unless an Event of Default has occurred and is continuing), upon reasonable prior written notice from Class A Lender (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Borrower shall provide (or shall cause any other Borrower Party to provide) reasonable access to Class A Lender and any of its agents, representatives or permitted assigns to enter upon the Property at any reasonable time offices of Borrower or such other Borrower Party 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 Underlying Loan 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 information relating to the terms, conditions and limitations set forth Underlying Loan in this Section 3.2.
(a) Purchaser shall have a right to enter upon the Property for possession or under the purpose control 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 Diligenceparty.
(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 ▇▇▇▇▇▇▇▇ Moneyagrees that it shall, this Agreement promptly upon reasonable request of Class A Lender, deliver (or shall automatically terminate. In the event cause to be delivered) to Lender and any of such terminationits agents, neither party shall have representatives or permitted assigns copies of any further obligations documents permitted to the other party hereunder, except for the Surviving Obligationsbe reviewed by Class A Lender in accordance with Article 26(a).
(c) Purchaser shall▇▇▇▇▇▇▇▇ agrees to make available to Class A Lender and 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 Borrower, such other Borrower Party 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 any Loan Documents or all of the Service Contracts, which are noted on Schedule 2 as being terminable upon thirty (30) days notice, Loan that Purchaser does not elect Class A Lender 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) Purchaser Without limiting the generality of the foregoing, Borrower acknowledges that Lender may enter into the Loan with Borrower based solely upon the information provided by Borrower to Class A Lender and the representations, warranties and covenants contained herein, and that Class A Lender, at its option, has the right at any time to conduct a partial or complete due diligence review on the Underlying Loan. Class A Lender may underwrite the Underlying Loan itself or engage a third-party underwriter to perform such underwriting; provided, however, that if such underwriting reveals a “Default” and/or “Event of Default” as defined in the Underlying Loan Documents, such “Default” or “Event of Default” will not result in a Default and/or Event of Default hereunder unless the matter revealed is independently a Default and/or Event of Default under the Loan Documents. ▇▇▇▇▇▇▇▇ agrees to reasonably cooperate with Class A Lender and any third party underwriter in connection with such underwriting, including, but not limited to, providing Class A Lender and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to the Underlying Loan in the possession, or under the control, of any Borrower Party or any Affiliate thereof.
(e) Subject to the terms of the Underlying Loan Documents, ▇▇▇▇▇▇▇▇ hereby acknowledges and agrees that Class A Lender shall have the right right, subject to conductthe terms and conditions of the Underlying Loan Documents, to commission and order an Appraisal of the Underlying Mortgaged Property at any time and from time to time, at its Class A Lender’s sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining . Subject to the condition terms of the PropertyUnderlying Loan Documents, provided(i) Borrower shall reasonably cooperate with Lender in connection with the commission or order of any Appraisal by Class A Lender and, however(ii) during any period of time commencing after Class A Lender notifies Borrower in writing that that Class A Lender (together with its Affiliates) no longer has any direct economic interest in the Underlying Whole Loan, Purchaser is not permitted Borrower shall use commercially reasonable efforts to perform cause the Underlying Mortgagor to cooperate with Class A Lender 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 boringby providing Lender with access to the Underlying Mortgaged Property, without (i) submitting subject 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 terms 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 terminationUnderlying Whole Loan Documents.
(f) Purchaser ▇▇▇▇▇▇▇▇ agrees to indemnify, defend reimburse Class A Lender on demand for reasonable 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, 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, 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 incurred by or for Seller Class A Lender 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
Sources: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Due Diligence. Purchaser Each of Infotopia (on the one hand), and its representatives shall be permitted to enter upon the Property at any reasonable time IMC 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 MIT (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 ▇▇▇▇▇▇▇ 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.
(chand) 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 conductconduct due diligence on the other party prior to the execution of any definitive agreement (sometimes referred to as "Agreement"). In order to accommodate such due diligence review, at its sole cost each party shall grant to the other party's respective representatives access, during normal business hours, to all of their respective books and expenserecords, any inspectionswith respect to ownership, studies or tests that Purchaser deems appropriate properties, and other assets relating to their respective businesses, as the case may be. Each of Infotopia, IMC and MIT agree to conduct their due diligence review in determining such a manner so as not to interfere unduly with the condition operation of the Propertybusiness providing the due diligence materials. In connection with such a review, providedeach of Infotopia, howeverIMC and MIT, Purchaser is not as well as their representatives, shall be permitted to perform any intrusive testing (except for limited asbestos sampling to be done as part of Purchaser's Phase I site assessment)contact and communicate with customers, includingsuppliers, without limitationemployees and others, a Phase II environmental assessment or boring, without (i) submitting to Seller the scope and inspections for such testing; and (ii) obtaining the provided prior written consent of Seller, (which consent shall not be unreasonably withheld.
(e) Purchaser agrees shall have been obtained. Infotopia, IMC and covenants with Seller MIT agree that they will use all information obtained in such due diligence solely for the purposes of evaluating the transactions contemplated in the Agreement, will hold such information in confidence, and will not disclose such information except to disclose to any third party (other than lenderstheir respective employees, accountantsagents and representatives. Said employees, attorneys agents 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 representatives shall be advised of the reports foregoing obligations by each of the parties. Upon the earlier of (a) the termination of this LOI or (b) if the Stock Acquisition does not close by the Outside Closing Date, each party shall return any other documentation documents, records or information obtained by Purchaser which relates to of the Property or Seller in any wayother, including all copies and discs. The confidentiality requirements shall survive the termination of which shall be used by Purchaser and its agents solely in connection with the transaction contemplated herebythis LOI. 4 In the event that this Agreement is terminatedany party, this subsection 3.2(e) shall survive termination.
(f) Purchaser agrees to indemnifyin the course of its due diligence review, defend and hold Seller and its partners, trustees, beneficiaries, shareholders, members, managers, advisors and other agents and their respective employees, officers, directors and shareholders (discovers material which makes improbable 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 material truth or incurred by any accuracy of the Indemnified Parties as a result of any activities of Purchaser (including activities of any of Purchaser's employees, consultants, contractors or representations and warranties made by the other agents) relating to the Property, including, without limitation, mechanics' liens, damage to the Property, injury to persons or property resulting from such activitiesparty, and contained in this letter agreement or the event that Agreement, the Property is disturbed or altered discovering party shall notify the other party in any way as a result writing of such activitiesdiscovery, Purchaser and shall promptly restore give such other party an opportunity to take (or commence in good faith) any necessary remedial action, within ten (10) days of the Property to its condition existing prior to the commencement of such activities which disturb or alter the Propertydiscovering party's notice. The foregoing indemnity does not include any claims, losses, damages, costs and expenses party required to take such action will have forty-five (including, without limitation, reasonable attorneys' fees and court costs45) resulting days from the mere discovery of information on or a condition at the Property. Furthermore, Purchaser agrees its commencement 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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 complete 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 Sellerremedial action.
(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. Purchaser (a) Buyer acknowledges and agrees that it has completed, and is satisfied, in all respects with its representatives shall be permitted due diligence review of the Cabot REIT, the Operating Partnership and the Partnership Subsidiaries, the physical condition of the Properties, the condition of title to enter upon the Property at any reasonable time Properties 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 Properties’ suitability for Buyer’s intended investment subject to the terms, conditions terms of this Agreement. Buyer shall have the right to continue its inspections and limitations set forth investigations as provided in this Section 3.2.
(a) Purchaser 5, but shall have a no 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 terminate this Agreement as a result of its Due Diligenceor based on such inspections and investigations. Seller Parties shall, and shall cause the Cabot REIT, the Operating Partnership and each of the Partnership Subsidiaries to, reasonably cooperate to answer Buyer’s reasonable questions arising out of Buyer’s continuing due diligence; provided, however, Buyer shall have no right to terminate this Agreement and receive back the Signing Deposit (or to terminate the Termination Fee Guaranty) as the result of or based upon such questions. The foregoing notwithstanding, nothing herein shall be construed to affect or otherwise limit Buyer’s rights under Article VI with respect to conditions of Closing or Buyer’s right to rely upon the representations and warranties provided by Seller Parties in Article II of this Agreement.
(b) Purchaser shall have through Subject to the last day rights 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 tenants of the Property which Purchaser determines makes Properties, Seller Parties shall allow Buyer Parties access to the Property unsuitable to Purchaser, Purchaser may terminate Properties on the terms and conditions of this Agreement by giving written notice for the purpose of termination making or conducting due diligence related to Seller on or before the last day purchase of the Due Diligence Period. If Purchaser does not timely deliver Properties subject to the following limitations:
(i) Access to the Properties shall be during normal business hours upon at least twenty-four (24) hours’ prior notice (either by phone or email) to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Money, this Agreement shall automatically terminate. In the event of Phone: (▇▇▇) ▇▇▇-▇▇▇▇, email address: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇, or such termination, neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligationsperson designated by Seller Parties in writing.
(cii) Purchaser shall, Buyer shall provide to such representative of Seller Parties in advance the names and scope of work for each Buyer Party who will be conducting due diligence at least thirty-one (31) days prior the Properties. Notwithstanding anything herein to the Closing Datecontrary, notify no invasive or subsoil testing shall be permitted without the prior written consent of Seller in writing requesting termination of any or all of the Service ContractsParties, 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 consent may be deemed to have accepted the assumption of such Service Contract. Purchaser shall assume all other Service Contracts withheld in the manner provided hereinSeller Parties’ sole and absolute discretion.
(diii) Purchaser Such access shall have not materially interfere with the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the condition operation of the PropertyProperties and shall not interfere with the rights of tenants.
(iv) Buyer shall not contact any tenant without giving Seller Parties reasonable prior notice of the same and without a representative of Seller Parties being present during such interview at a time mutually agreed upon by the parties.
(v) Seller Parties or their designated representative shall be present during any physical testing or inspection of the Properties at a time mutually agreed upon by the parties.
(vi) None of Buyer Parties shall destroy or damage any portion of the Properties.
(vii) Prior to such time that any of Buyer or any Buyer Parties, providedas applicable, howeverenter the Properties, Purchaser is Buyer shall (i) obtain policies of general liability insurance which insure Buyer, its agents and representatives with liability insurance limits of not permitted to perform any intrusive testing less than $1,000,000 combined single limit for personal injury and property damage and $2,000,000 in the general aggregate and name Seller Parties and their subsidiaries as additional insureds and which are with such insurance companies, provide such coverages and carry such other limits as Seller Parties shall reasonably require, and (except for limited asbestos sampling to ii) provide Seller Parties with certificates of insurance evidencing that the aforementioned policies of insurance have been obtained.
(viii) All such inspections shall be done as part of Purchaser's Phase I site assessment)at Buyer’s sole expense and shall be in accordance with applicable Laws, including, without limitation, laws relating to worker safety and the proper disposal of discarded materials.
(ix) Buyer shall cause each Buyer Party to be aware of this Agreement and the obligations of such parties hereunder.
(x) No so-called Environmental “Phase II’ or other invasive testing shall be done without Seller Parties’ written permission, which Seller Parties may withhold in their sole and absolute discretion.
(c) Notwithstanding any provision in this Agreement to the contrary, except in connection with the preparation of a so-called “Phase II I” environmental assessment report with respect to any of the Properties, zoning reports or boringproperty condition reports or assessments, and Section 9.14(e) of this Agreement, Buyer shall not contact any governmental official or representative in any way relating to the Properties (including, without (ilimitation, regarding the environmental condition of the Properties) submitting to without Seller the scope and inspections for such testing; and (ii) obtaining the Parties’ prior written consent of Sellerthereto, which consent shall not be unreasonably withheldwithheld or delayed. In addition, if Seller Parties’ consent is obtained by Buyer, Seller Parties shall be entitled to receive at least two (2) days prior written notice of the intended contact and to have a representative present when Buyer has any such contact with any governmental official or representative.
(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 Buyer hereby agrees to indemnify, defend defend, and hold Seller Parties free 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 claimslosses, lossescosts, damages, costs and expense claims, liabilities, expenses, demands or obligations, of any kind or nature whatsoever (including, without limitation, including reasonable attorneys' fees ’ fees, expenses and court costsdisbursements) suffered arising out of or incurred resulting from the breach by any Buyer of the Indemnified Parties as a result terms of Section 5.1(b) and Section 5.1(c) or the entry on the Properties and/or the conduct of any activities of Purchaser (including activities diligence by Buyer or any Buyer Party except to the extent caused by the negligence or willful misconduct of any of Purchaser's employeesSeller Parties. The foregoing indemnity shall survive any termination of this Agreement for a period of one (1) year, consultantsprovided that with respect to any losses, contractors costs, damages, claims, liabilities, expenses, demands or obligations which arise and of which Seller Parties have provided Buyer with written notice prior to the expiration of such one (1) year period, the foregoing indemnity shall survive until final resolution of same. Notwithstanding the foregoing, Buyer shall not have any liability under this Section 5.1(d) for any claims resulting from or relating to any existing conditions, including, but not limited to, any hazardous materials detected by Buyer’s inspections, except to the extent such existing conditions have been exacerbated due to the negligence or willful misconduct on the part of Buyer or any of Buyer Parties during the course of inspections.
(e) BUYER, FOR ITSELF AND ALL BUYER PARTIES, HEREBY WAIVES AND RELEASES EACH SELLER PARTY FROM ALL CLAIMS RESULTING DIRECTLY OR INDIRECTLY FROM ACCESS TO, ENTRANCE UPON, OR INSPECTION OF THE PROPERTIES BY BUYER OR ANY BUYER PARTIES, EXCEPT TO THE EXTENT ANY CLAIM ARISES OUT OF THE NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER OR ANY OF SELLER PARTY. THE PROVISIONS OF THIS SECTION 5.1(e) SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
(f) Prior to the execution and delivery of this Agreement, Seller Parties delivered or provided access to Buyer or its counsel, for each Property, copies of the most recent title insurance policy (each, an “Existing Policy”) and the most recent survey in Seller Parties’ possession (each, an “Existing Survey”). Buyer has ordered from Chicago Title Insurance Company (“Chicago”), First American Title Insurance Company (“First American”), and Fidelity National Title Insurance Company (“Fidelity”, and together with Chicago and First American, collectively, the “Title Company”) title insurance commitment(s) (the “Title Commitments”) obligating the Title Company to issue for each Property a new American Land Title Association Standard Coverage owner’s title insurance policy, in an amount allocated to each Property set forth on Schedule 1.8 to this Agreement (“Agreed Value” as to each Property) and insuring fee title to the Property subject only to Permitted Exceptions (as defined below), together with such endorsements and affirmative coverage desired by Buyer to provide primary coverage up to an insured amount agreeable to Buyer for all Properties (collectively, the “Owner’s Title Policies”). Buyer has completed and is satisfied with its review of the Title Commitments and Existing Surveys for all of the Properties, and except for those matters set forth on Exhibit E, which Seller Parties have agreed on or prior to the date hereof to remove (or otherwise cure as set forth on Exhibit E) as a condition precedent to Buyer’s obligation to Close (the “Obligatory Removal Matters”), Buyer shall have no right to object to any title or survey matters contained in the Title Commitments and Existing Surveys and all such matters contained therein shall be deemed Permitted Exceptions. Notwithstanding the foregoing, Buyer and the Title Company may continue to work together after the date hereof to revise the Title Commitments (and any related title owner pro formas) and include such endorsements as Buyer and the Title Company may agree to, provided that Seller shall have no additional cure or other agentstitle obligations except as may be expressly agreed to pursuant to this Agreement.
(g) In the event the Properties are subject to exceptions to title other than Permitted Exceptions, and such exceptions would have a material adverse effect on the marketability, financeability, value or use, access or operation of the subject Property as presently used and operated (a “Material Title Defect”), Seller Parties shall, and shall cause the Target Companies to (all at Seller Parties’ sole cost and expense), use commercially reasonable efforts to cure or otherwise remove any Material Title Defects, in each case to Buyer’s commercially reasonable satisfaction. Such efforts may include causing the Title Company (whether pursuant to undertakings, escrows, or indemnities provided to the Title Company by Seller Parties, or otherwise) to remove such objection as an exception to title in the Owner’s Title Policy issued at Closing or affirmatively insure against the same (which insurance shall be reasonably satisfactory to Buyer in form and substance). It shall not be considered a Material Title Defect that a use or structure (including setbacks) or amount of parking is legal nonconforming as to use or structure (including setbacks) or amount of parking. In the event a Material Title Defect is not removed or otherwise cured by Closing, Buyer shall have the option to either (x) terminate this Agreement, in which case the provisions of Article VIII shall apply or (y) waive such Material Title Defects, in which event such Material Title Defects shall be deemed additional Permitted Exceptions and the Closing shall occur as herein provided without any reduction of or credit against the Purchase Price. For purposes of this Agreement, “Permitted Exceptions” shall include (i) all matters described in each of the Title Commitments or shown in the Existing Surveys (as each of the foregoing may have been updated at Buyer’s request prior to the date hereof) which are not Obligatory Removal Matters, (ii) all title conditions created by Buyer or resulting from the acts of Buyer or its agents or representatives or otherwise consented to by Buyer in writing, (iii) the Space Leases, (iv) all standard printed exceptions in the Owner’s Title Policy, and (v) any other matters which are cured or otherwise removed prior to Closing subject to Buyer’s reasonable approval.
(h) Notwithstanding the foregoing, Permitted Exceptions do not include, and at or prior to Closing, Seller Parties shall be obligated (and hereby covenant to): (i) cause a release and discharge of any voluntary encumbrances created by Seller Parties or the Target Companies after the date hereof and not set forth on the applicable Title Commitment delivered to Buyer prior to the date hereof, (ii) pay in full and cause to be canceled and discharged, all mechanics’ and contractors’ liens which encumber any Property as of the Closing Date for work performed prior to the Closing Date and terminate any recorded notices of commencements including those relating to Pre-12/15 Capital Projects, other than such liens or notices of commencement which relate to work done by or on behalf of a tenant that are not a Tenant Inducement pursuant to a Space Lease that is not in default, provided that, notwithstanding the Propertyforegoing to the contrary, (1) Seller Parties shall not be obligated to spend greater than Two Million Dollars ($2,000,000) in the aggregate to pay or cause to be cancelled or discharged or terminated any and all such liens and notices of commencement encumbering Properties in the Portfolio related to work done by or on behalf of tenants that are in default under their respective Space Leases (to the extent Seller Parties pay any such amounts and such liens or notices of commencement are related, after Closing Buyer shall use commercially reasonable efforts to obtain such amounts from the applicable tenants and, upon receipt thereof, shall promptly reimburse Seller Parties for amounts paid by Seller Parties with respect thereto), and (2) Seller Parties shall not be obligated to remove any mechanic’s liens related to work for New Leases or Lease Modifications which have been approved in writing by Buyer, including, without limitation, mechanics' liensTenant Inducements agreed to in such New Leases and Lease Modifications; (iii) pay all liens and monetary encumbrances affecting any Property evidenced by deeds of trust, damage mortgages, past due taxes and assessments, judgment liens and/or other or charges in a fixed sum, in each case other than (A) liens which Seller Parties have no obligation to the Property, injury pay and/or discharge pursuant 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, clause (ii) waiver above and (B) liens for taxes which are being contested by Seller Parties or Buyer in accordance with the terms of subrogation, this Agreement (Buyer hereby agrees that such liens and monetary encumbrances under this clause (iii) limits of not less than One Million and 00/100 may be cured or removed either by the Title Company agreeing to remove the same as exceptions to title in the Owner’s Title Policies issued at Closing or affirmatively insuring against the same ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such which insurance shall name ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") be reasonably satisfactory to Buyer in form and ▇▇▇▇▇▇▇ 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 abovesubstance), (iii) appraisals, assessments or other valuations of the Property in the possession of Seller or HCMC, ); and (iv) management agreementscause a release and discharge each of the Obligatory Removal Matters. Except as set forth in clause (iii) above, any of the matters set forth in this Section 5.1(h) that Seller Parties are obligated to release and discharge, pay or cause to be canceled and discharged, as applicable, that can be satisfied by payment of a fixed sum of money must be satisfied by Seller Parties prior to or at Closing, and if not so satisfied, shall be satisfied at Closing out of the Closing Cash Payment without adjustment to the Purchase Consideration. The Seller Parties may satisfy their obligation to clear title with respect to any item described above that it contests in good faith if, without retention of any liability by the Target Companies after the Closing Date, Seller Parties either: (a) take such actions as are reasonably necessary to remove, satisfy or cure (of record or otherwise, as appropriate) such objection (subject to Buyer’s reasonable approval); or (b) cause the Title Company to remove such objection as an exception to title in the Owner’s Title Policy issued at Closing or affirmatively insure against the same (which insurance shall be reasonably satisfactory to Buyer in form and substance), in either case without any additional cost or liability to Buyer and without retention of any liability by the Target Companies. To the extent that funds are needed to cure any such exception, Seller Parties shall have the right to cause any portion of the Closing Cash Payment being paid at Closing to be delivered to the Title Company to cure same.
(hi) Sections 3.2(eIn connection with obtaining the Owner’s Title Policies, Buyer and Seller Parties, as applicable, and to the extent requested by the Title Company, shall deliver to the Title Company (i) evidence sufficient to establish (A) the legal existence of Buyer and 3.2(fSeller Parties and (B) authority of the respective signatories of Seller Parties and such other provisions in this Agreement which expressly survive Closing or termination Buyer to bind Seller Parties and Buyer, as the case may be, and (ii) certificates of this Agreement good standing of Seller Parties. Further, Seller Parties shall survive Closing or any termination of this Agreement (collectively, deliver to the "Surviving Obligations").Title Company an owner’s title affidavit and no
Appears in 1 contract
Sources: Interest Purchase Agreement (Blackstone Real Estate Income 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Capital Management Corporation ("HCMC") and ▇▇▇▇▇▇▇ 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
Sources: Asset Purchase Agreement (Speedway Motorsports Inc)