Entry and Indemnity. In connection with any entry by Purchaser, or its agents, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove the scope and methodology of such proposed testing within three (3) business days after receipt of such notice, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractors. Purchaser shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by Purchaser, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or if the sale is not consummated, beyond the termination of this Agreement.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Brandywine Realty Trust), Purchase and Sale Agreement (Brandywine Realty Trust), Purchase and Sale Agreement (Brandywine Realty Trust)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove disapprove, in Seller's sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees or contractors. Purchaser Buyer shall not contact any governmental authority without first obtaining the prior written consent of Seller thereto, and Seller, at Seller's election, shall be entitled to have a representative on any phone or other contact made by Buyer to a governmental authority and present at any meeting by Buyer with a governmental authority. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Ocwen Asset Investment Corp), Purchase and Sale Agreement (Ocwen Asset Investment Corp), Agreement of Purchase and Sale (American Industrial Properties Reit Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business (c) in compliance with all applicable laws, and the business of Seller's tenants and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site invasive testing, Purchaser including but not limited to any air sampling, borings, drillings or other samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three two (32) business days after receipt of such notice. If Seller fails to respond within such two (2) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority (other than making routine requests for information for a Phase I report or a zoning report) without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority and present at any meeting by Buyer with a governmental authority. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (but in no event less than One Million Dollars ($1,000,000) with respect to any liability insurance) and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Sellerprior to any entry on the Property. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance telephonic notice of such entry (by contacting Xxx Xxxx or Xxx Xxxxxxxxxxx at 972-991-1119) and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possiblepracticable, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site intrusive testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s reasonable discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors take any sample from have disapproved the Property in connection with any such approved testing, upon Seller's request, Purchaser shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own proposed testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon Seller's request, Purchaser shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractors. Purchaser Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereofcustomary amounts, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any actual costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property used by such activity; provided that Buyer shall not be liable to Seller (i) as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not intentionally exacerbate the condition, or (ii) the gross negligence or willful misconduct of hazardous substances Seller, or materials onto any of Seller’s agents, employees, representatives or contractors. The provisions of this Section 9.3 shall be in addition to any access or indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cb Richard Ellis Realty Trust)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller Sellers reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's Sellers’ business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to SellerSellers. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including any destructive or invasive testing, Buyer shall give Seller Sellers notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller In the event that Buyer proposed to perform any destructive or invasive testing, Sellers shall approve or disapprove the scope and methodology of such proposed testing within three (3) business days after receipt of such noticedisapprove, which such approval to shall not be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereofunreasonably withheld. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's at Sellers’ request, Purchaser Buyer shall provide to Seller Sellers a portion of such sample being tested to allow SellerSellers, if it so chooses, to perform its own testing. Seller Sellers or its their representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's Sellers’ request, Purchaser Buyer shall promptly deliver to Seller Sellers copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees or contractors. Purchaser Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (public liability in a combined single limit of not less than $2,000,000) and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller Sellers with evidence of such insurance coverage upon request by SellerSellers. Purchaser Buyer shall indemnify, defend indemnify and hold Seller Sellers harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's attorneys’ fees) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any invasive on-site testing, Purchaser including but not limited to any air sampling, borings, drillings or other samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or any tenant without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or tenant and present at any meeting by Buyer with a governmental authority or tenant. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (but in no event less than One Million Dollars ($1,000,000) with respect to any liability insurance) and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Seller and Seller’s lender shall be named as additional insureds on such insurance. Buyer shall provide Seller with evidence of such insurance coverage upon request by Sellerprior to any entry on the Property. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Ps Business Parks Inc/Ca)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any intrusive on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove the scope and methodology of such disapprove, in Seller’s sole discretion, any proposed intrusive testing within three two (32) business days after receipt of such notice. If Seller fails to respond within such two (2) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing tenant interview or other inspection any testing, inspection, or due diligence review performed on with respect to the Property. Upon the request of Seller's request, Purchaser if the transaction contemplated hereby is terminated or does not close, Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or any tenant without first obtaining the prior written consent of Seller, which shall not be unreasonably withheld or delayed, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or tenant and present at any meeting by Buyer with a governmental authority or tenant. Notwithstanding the foregoing, Buyer is permitted to contact appropriate governmental authorities to verify the zoning of the Property and the absence of building code violations. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a preexisting condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition, and in such event Buyer’s liability shall be limited to the extent of hazardous substances such exacerbation. The provisions of this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland American Real Estate Trust, Inc.)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's business ’s business, (c) in compliance with all applicable laws, and the business of Seller's tenants and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority and present at any meeting by Buyer with a governmental authority; provided that the foregoing shall not apply to contacts for the sole purpose of confirming the land-use or zoning status of the Property. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release of hazardous substances or materials onto consultants do not exacerbate the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testingcondition. The foregoing indemnity shall survive beyond the Closing, or if the sale is not consummated, beyond the termination provisions of this Agreement.this
Appears in 1 contract
Entry and Indemnity. In connection with any entry by Purchaser, or its agents, employees employees, consultants, investors, advisors, affiliates or contractors (collectively "Purchaser's Disclosees") onto the Property, Purchaser shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove the scope and methodology of such proposed testing within three two (32) business days after receipt of such notice, such approval to may be within the given or withheld in Seller's sole and unfettered discretion of Seller; discretion. Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors Purchaser's Disclosees take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractors. Purchaser shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by Purchaser, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or if the sale is not consummated, beyond the termination of this Agreement.reports
Appears in 1 contract
Samples: Contribution Agreement (Urban Shopping Centers Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as (a) during normal business hours, (b) using all commercially reasonable steps in order to minimize, to the greatest extent possible, minimize interference with Seller's ’s business and the business of Seller's tenants ’s tenants, and otherwise (c) in a manner reasonably acceptable to Sellercompliance with all applicable laws. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole but reasonable, discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property, provided that Buyer shall not be required to postpone any testing or other inspection or due diligence review if Seller is unable or unwilling to provide a representative to be present. Upon If Buyer terminates this Agreement, except due to Seller's request’s default under this Agreement, Purchaser shall Buyer shall, upon the request of Seller, promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or any tenant without allowing Seller, at Seller’s election, to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or tenant and to be present at any meeting by Buyer with a governmental authority or tenant, provided that, Buyer shall not be required to postpone any such contact if Seller is unable or unwilling to provide a representative. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure a coverage amount not less than Two Million Dollars ($2,000,000.00), insuring against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive for a period of nine (9) months beyond the Closing, or or, if the sale is not consummated, for a period of nine (9) months beyond the termination of this Agreement. Any claim for such indemnity that Seller may have at any time, which is not specifically asserted by written notice to Buyer within such nine (9) month period, shall not be valid or effective, and Buyer shall have no liability to Seller with respect thereto. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Dividend Capital Total Realty Trust Inc.)
Entry and Indemnity. In connection with any prior or further entry by Purchaser, or its agents, employees or contractors onto the Property, Purchaser shall give give, or shall have given, Seller reasonable advance notice of such entry and shall conduct conduct, or shall have conducted, such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser shall give give, or shall have given, Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove the scope and methodology of such proposed testing (if invasive) within three (3) business days after receipt of such notice, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors take take, or have taken, any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser shall provide provide, or shall have provided, to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on at the Property. Upon Seller's requestIn the event this Agreement is terminated, Purchaser shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by any independent third party contractors hired by or on behalf of Purchaser or its agents, employees or contractors. Purchaser shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser shall indemnify, defend indemnify and hold Seller Seller, its officers, employees, shareholders, directors, partners, members, managers and agents harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by Purchaser, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage Agreement whether prior to or after the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testingdate hereof. The foregoing indemnity shall survive beyond the ClosingClosing for one (1) year, or if the sale is not consummated, beyond the termination of this AgreementAgreement for a period of three (3) years.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Monthly Income Fund Iii Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenant, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site invasive testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Buyer may make inquiry with any governmental authority as to information such governmental authority may have with respect to the zoning, development and land use approvals related to the Property; provided, however, Buyer may not disclose to any governmental authority any information about the Property that Buyer may obtain in the course of its due diligence activities without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion except to the extent disclosure of such information is explicitly required to be made by Buyer pursuant to applicable laws. Buyer shall may conduct an interview with the tenant. Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or tenant and present at any meeting by Buyer with a governmental authority or tenant. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts the amount of One Million and in form and substance adequate to insure against all liability 00/100 ($1,000,000.00) Dollars combined single limit for injury or death of Purchaser, its agents, employees one or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereofmore persons on an occurrence basis, and Purchaser for damage to tangible personal property (including loss of use) on an occurrence basis, and Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property and for enforcing this indemnity; provided that Buyer shall not be liable to Seller solely as a result of the mere discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall supersede any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Entry and Indemnity. Notwithstanding the fact that Buyer has no due diligence or inspection contingency under this Agreement, Seller shall permit Buyer to enter the Property in accordance with the terms of this Section 9.3 solely for purposes of planning and preparing for Buyer’s ownership of the Property and for purposes of performance and design testing or inspection solely related to such planning and preparation. In connection with any entry by PurchaserBuyer, or its agents, agents or employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and the nature and scope of any testing or inspection to be performed in connection with such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's business ’s operation of the Property and the business use and enjoyment of the Property by Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting Notwithstanding anything to the foregoingcontrary contained herein, prior to Buyer shall not contact any entry to perform governmental authority or any on-site testing, Purchaser shall give tenant without first notifying Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove the scope and methodology nature of such proposed testing within three (3) business days after receipt of such noticecontact, such approval to be within the sole and unfettered discretion of Seller; , at Seller's failure to notify Purchaser of its approval or disapproval ’s election, shall be deemed entitled to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors take have a representative participate in any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing telephone or other inspection performed on the Propertycontact made by Buyer to a tenant and present at any meeting by Buyer with a tenant. Upon Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractors. Purchaser shall maintain, and shall assure that its contractors maintain, maintain public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, agents or employees or contractors, arising out of any entry or inspections of to the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees agents or contractors employees. The provisions of this Section 9.3 shall be in addition to any access or indemnity agreement previously executed by Buyer in connection with the Property; provided that in the course event of performing any inconsistency between this Section 9.3 and such other agreement, the inspections, testings or inquiries provided for in provisions of this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testingSection 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Comstock Homebuilding Companies, Inc.)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any air sampling, borings, drillings or other samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole and absolute discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser if this Agreement has been terminated, Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants without representation, warranty or any right of reliance. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority (except for routine due diligence inquiries) or any tenant without first obtaining the prior written consent of Seller thereto in Seller’s sole and absolute discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or tenant and present at any meeting by Buyer with a governmental authority or tenant. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (but in no event less than Two Million Dollars ($2,000,000) with respect to any liability insurance) and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Seller, Zynga and Seller’s property manager, Cxxxxxx & Wxxxxxxxx, shall be named as additional insureds on such insurance. Buyer shall provide Seller with evidence of such insurance coverage upon request by Sellerprior to any entry on the Property. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Entry and Indemnity. In connection with any entry by Purchaser, or its agents, employees employees, consultants, investors, advisors, affiliates or contractors (collectively "Purchaser's Disclosees") onto the Property, Purchaser shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove the scope and methodology of such proposed testing within three two (32) business days after receipt of such notice, such approval to may be within the given or withheld in Seller's sole and unfettered discretion of Seller; discretion. Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors Purchaser's Disclosees take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractorsPurchaser's Disclosees. Purchaser shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (public liability in a combined single limit of not less than $5,000,000) and in form and substance adequate to insure against all liability of Purchaser and Purchaser, its agents, employees or contractors, 's Disclosees arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall provide Seller with evidence of such insurance coverage upon request by SellerSeller including evidence that Seller is an additional insured on the public liability policy. Purchaser shall indemnifyprotect, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any liens or claims of liens or to damage to property or injury to persons on account of any entry on the Property by Purchaser and Purchaser, its agents, employees or contractors 's Disclosees in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity provisions contained in this Paragraph 8.15 are collectively herein referred to as the "Protection Provision." The foregoing Protection Provision shall survive beyond the Closing, or if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Urban Shopping Centers Inc)
Entry and Indemnity. In connection with any entry by Purchaser, or its agents, employees or contractors onto the Property, Purchaser shall agrees to give Seller reasonable advance notice of such entry and shall agrees to conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser shall agrees to give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall will approve or disapprove the scope and methodology of such proposed testing within three (3) business days after receipt of such notice, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser shall will provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Purchaser will offer the opportunity for Seller or its representative may to be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser shall will promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractors. Purchaser shall will maintain, and shall agrees to assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall will provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser shall agrees to indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's attorneys' fees) arising out of or relating to any entry on the Property by Purchaser, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall will survive beyond the Closing, or if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any air sampling, borings, drillings or other samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such noticenotice (provided that Seller’s approval shall not be required for a non-invasive Phase I Environmental Site Assessment but excluding air quality testing and evaluation, other than such air quality testing and evaluation for carbon monoxide and carbon dioxide for which Seller’s approval shall not be required). If Seller fails to be respond within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval such three (3) business day period, Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, representatives, employees, contractors or consultants. Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority and present at any meeting by Buyer with a governmental authority; provided, however, that Buyer or its agents, employees or contractorscontractors may make informational inquiries of governmental officials and representatives with regards to a Phase I environmental review and preparation, zoning issues and any other matters which do not relate to any environmental issues (except with respect to the Phase I review and preparation as set forth above). Purchaser Further, Buyer shall not contact any tenant without first obtaining the prior written consent of Seller thereto in Seller’s reasonable discretion, provided, however, that Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a tenant and present at any meeting by Buyer with a tenant. In the event Seller fails to consent to or approve (or is deemed to have denied or disapproved) any request by Buyer hereunder for any testing or studies, or any interviews, contact or meetings with tenants, governmental authorities or other third parties, or other matters requiring Seller’s approval hereunder, Buyer may terminate this Agreement prior to the Contingency Period, whereupon the Deposit shall be returned to Buyer. If Buyer does not timely elect to terminate this Agreement prior to the end of the Contingency Period, Buyer shall be deemed to have waived its right to terminate this Agreement under this Section. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (but in no event less than Two Million Dollars ($2,000,000) with respect to any liability insurance) and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Sellerprior to any entry on the Property. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 are in substitution and replacement of the provisions of the Access Agreement (as defined in Section 9.9 below) and the provisions (including the above indemnity and hold harmless provisions) shall be deemed to extend and apply to any entry upon the Property by Buyer, its agents, representatives, employees, contractors or materials onto consultants under the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testingAccess Agreement. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Hines Real Estate Investment Trust Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or any tenant without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or tenant and present at any meeting by Buyer with a governmental authority or tenant. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of (i) the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants are conducted without negligence or (ii) disclosures required by law to be made to any governmental authorities as a result of hazardous substances Buyer’s inspections provided that Buyer first shall promptly notify Seller of such intended disclosure so that Seller may seek an appropriate protective order or materials onto other remedy in connection with such disclosure, and Buyer shall reasonably cooperate with Seller in obtaining such protective order or other remedy. The provisions of this Section 9.3 shall be in addition to any access or indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Dividend Capital Trust Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser Buyer shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove the scope and methodology of such proposed testing within three (3) business days after receipt of such notice, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser Buyer of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, chooses to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees or contractors. Purchaser Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of PurchaserBuyer, its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation limitation, damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising PurchaserBuyer's testing. The foregoing indemnity shall survive beyond the Closing, or if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Entry and Indemnity. Seller shall afford Buyer and authorized representatives of Buyer reasonable access to the Property to conduct inspections for the purpose of determining whether or not to purchase the Property. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testingtesting at the Property, Purchaser Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove disapprove, in Seller's reasonable discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave approved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees or contractors. Purchaser Except for telephonic contact and written requests for public records, Buyer shall not contact any governmental authority without first obtaining the prior written consent of Seller thereto, and Seller, at Seller's election, shall be entitled to have a representative present at any meeting by Buyer with a governmental authority. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by Purchaser, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or if the sale is not consummated, beyond the termination of this Agreement.,
Appears in 1 contract
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's ’s tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser Buyer shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. In the event that Buyer proposes to perform any destructive or invasive testing, Seller shall approve or disapprove disapprove, in Seller’s sole and absolute discretion, the scope and methodology of such proposed destructive or invasive testing within three (3) business days after receipt of such notice, such approval to be within the sole and unfettered discretion of . Seller; Seller's ’s failure to notify Purchaser of its approval or disapproval provide such notice shall be deemed to be Seller's disapproval thereofdisapproval. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon at Seller's ’s request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's ’s request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees or contractors. Purchaser Buyer shall maintain, and shall assure ensure that its contractors maintain, statutory workers compensation coverage and at least $1,000,000 of public liability and property damage insurance in amounts insurance, each such policy naming Seller and its affiliates as additional insures, and otherwise in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's attorneys’ fees) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings testing or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pericom Semiconductor Corp)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants Tenant, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three one (31) business days day after receipt of such notice. If Seller fails to respond within such one (1) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or Tenant without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or Tenant and present at any meeting by Buyer with a governmental authority or Tenant. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any actual, provable costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) solely arising out of or directly relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials above levels allowed by law or any significant or material damage to the Property; provided that Buyer shall not be liable to Seller as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release of hazardous substances or materials onto consultants do not exacerbate the Property, excluding, however, any costs incurred condition above levels allowed by Seller in supervising Purchaser's testinglaw. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (GK Investment Property Holdings II LLC)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants Tenant, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any invasive on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or Tenant without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or Tenant and present at any meeting by Buyer with a governmental authority or Tenant; provided, however, that Buyer and/or its consultants shall have the right to contact governmental authorities with notice to Seller, but without Seller’s prior written consent, in connection with reasonable and customary due diligence in order to obtain zoning verification letters and to investigate the Property’s compliance with applicable building codes and other legal requirements. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts the amount of $2,000,000 and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall replace any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or any tenant without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion with respect to governmental authorities and in Seller’s reasonable discretion with respect to tenants, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or tenant and present at any meeting by Buyer with a governmental authority or tenant, provided, however, that Buyer may make informational inquiries of governmental officials and representatives with regards to a Phase I environmental review and preparation and routine zoning review of the Property and any other matters which do not relate to any environmental issues (except with respect to the Phase I review and preparation as set forth above). Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Maguire Properties Inc)
Entry and Indemnity. In connection with any entry by Purchaserthe Buyer, or its agents, employees or contractors onto the PropertyProperties, Purchaser the Buyer shall give the Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent reasonably possible, interference with the Seller's business and the business of the Seller's tenants and otherwise in a manner reasonably acceptable to the Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser the Buyer shall give the Seller oral or written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. The Seller shall approve or disapprove the scope and methodology drilling aspects of such any proposed testing within three two (32) business days after receipt of such notice; provided that if the Seller disapproves of, and prevents the Buyer from performing, any such approval proposed drilling, the Property subject to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval such proposed drilling shall be deemed to be Sellera Deleted Property and provided further that any proposed testing other than drilling shall be at the Buyer's disapproval thereofdiscretion. If Purchaser the Seller fails to respond within such two (2) business day period, the Seller shall be deemed to have disapproved the proposed testing. If the Buyer or its agents, employees or contractors take any sample from the Property Properties in 40 44 connection with any such approved testing, upon the Buyer, at the request of the Seller's request, Purchaser shall provide to the Seller a portion of such sample being tested to allow the Seller, if it so chooses, to perform its own testing. The Seller or its representative may be present to observe any testing or other inspection performed on the PropertyProperties. Upon After any such testing, the Buyer shall, at its cost and to the reasonable satisfaction of the Seller after consideration of industry standards, restore each Property to its condition prior to any such testing. The Buyer shall provide the Seller with reasonable prior notice. If the Buyer intends to contact any governmental authority with respect to any environmental matter relating to the Properties and the Seller, at the Seller's requestelection, Purchaser shall promptly deliver be entitled to Seller copies of have a representative on any reports phone or other contact made by the Buyer to a governmental authority and present at any meeting by the Buyer with a governmental authority. In the event the Buyer contacts any governmental authority with respect to any matter other than environmental matters relating to the Properties, the Buyer shall provide the Seller with prior notice of such contact. The Buyer shall provide the Seller with reasonable prior notice If the Buyer intends to contact any testing tenant of the Properties and the Seller, at the Seller's election, shall be entitled to have a representative on any phone or other inspection of contact made by the Property performed Buyer to a tenant and present at any meeting by Purchaser or its agents, employees or contractorsthe Buyer with a tenant. Purchaser The Buyer shall maintain, and shall assure that each of its contractors maintain, public liability and property damage insurance in amounts (minimum coverage of One Million Dollars ($1,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate) and in form and substance adequate (with the Seller named as an additional insured) to insure against all liability of Purchaser, the Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property Properties pursuant to the provisions hereof, and Purchaser the Buyer shall provide the Seller with evidence of such insurance coverage upon request by the Seller. Purchaser The Buyer shall indemnify, defend indemnify and hold the Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property Properties by Purchaserthe Buyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement; provided that the Buyer shall not be liable for pre-existing conditions that are discovered, including without limitation damage to and not caused, by the Property Buyer's inspection or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours; (b) so as to minimize, to the greatest extent reasonably possible, interference with Seller's business ’s business; (c) in compliance with all applicable laws; and the business of Seller's tenants and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s reasonable discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice; provided that Seller shall have the right to approve or disapprove any proposed invasive environmental testing (e.g. testing including boring, drilling, or sampling) in its sole discretion. If Seller fails to respond within such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval three (3) business day period, Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority (other than with respect to routine and customary due diligence inquiries concerning the Property) without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, without first notifying Seller of Buyer’s intention to do so. Buyer shall maintain, and shall assure that its contractors maintain, public commercial general liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller and Seller’s Affiliates (as hereinafter defined) harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) for physical damage to property or personal or bodily injury arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings tests or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller as a result of the discovery by Buyer of a pre-existing environmental or physical condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition, nor for any claims, injury, liabilities or costs caused by, or arising out of, the negligence or willful misconduct of hazardous substances Seller or materials onto the Propertyits agents, excluding, however, any costs incurred by Seller in supervising Purchaser's testingemployees or contractors. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the Closing Date.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Moody National REIT I, Inc.)
Entry and Indemnity. In connection with any entry by Purchaser, Buyer or its agents, employees or contractors Agents onto the Property, Purchaser Buyer shall give Seller Port reasonable advance written notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and uses being made of the business of Seller's tenants Property and otherwise in a manner reasonably and on terms and conditions acceptable to SellerPort. All entries by Buyer or its Agents onto the Property to perform any testing or other investigations which could affect the physical condition of the Property (including, without limitation, operational testing or submergence) or the uses thereof will be made only pursuant to the terms and conditions of a permit to enter or other written agreement in form and substance satisfactory to Port. Without limiting the foregoing, prior to any entry to perform any on-site testingtesting prior to the Closing, Purchaser shall Buyer must give Seller Port written notice thereof, including the identity of the company or persons who will perform such testing testing, the precise time and location of the testing, and the proposed scope of the testing. Seller Port shall approve have the right to approve, disapprove, or disapprove condition and limit the scope and methodology of such proposed testing testing, in Port’s sole discretion, within three ten (310) business days after receipt of such notice, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser Buyer or its agentsAgents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller Port a portion of such sample being tested to allow SellerPort, if it so chooses, to perform its own testing. Seller Port or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser Buyer shall promptly deliver to Seller Port copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agentsAgents, employees or contractors, but shall not deliver copies of any such reports to any other person or entity without Buyer’s prior written approval. Purchaser Buyer shall keep all test results and information strictly confidential, and shall indemnify, reimburse, defend and hold City and Port harmless from and against any loss, cost, expense, or damage resulting from Buyer’s failure to keep any information obtained from an inspection or testing of the Property strictly confidential; provided, however, Buyer shall not be liable if and to the extent Buyer is required to disclose such information pursuant to a court order. Buyer shall comply with all laws, ordinances, rules, regulations, orders and the like in connection with any entry onto or testing of the Property. Buyer shall maintain, and shall assure require that its contractors Agents maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractorsAgents, arising out of any entry or inspections inspection of the Property pursuant to in connection with the provisions hereoftransaction contemplated hereby, and Purchaser Buyer shall provide Seller City with evidence of such insurance coverage upon request by Sellerfrom City. Purchaser To the fullest extent permitted under law, Buyer shall indemnify, defend and hold Seller harmless City and Port, their Agents, and each of them, from and against any liabilities, costs, damages, liabilities, losses, expensesliens, liens or claims and expenses (including, without limitation, reasonable attorney's feesfees of attorneys, experts and consultants and related costs) arising out of or relating to any entry on on, under or about the Property by PurchaserBuyer, its agentsAgents, employees or contractors and subcontractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including whether prior to the date of this Agreement or during the term hereof, including, without limitation limitation, any injuries or deaths to any persons (including, without limitation, Buyer’s Agents) and damage to the Property or release of hazardous substances or materials onto the Propertyany property, excluding, however, from any costs incurred by Seller in supervising Purchaser's testingcause whatsoever. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent reasonably possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove disapprove, in Seller's sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Buyer shall not contact any governmental authority with respect to any environmental matter relating to the Property, except for the sole and limited purpose of obtaining information necessary to prepare a Phase I environmental study, without first obtaining the prior written consent of Seller thereto, and Seller, at Seller's requestelection, Purchaser shall promptly deliver be entitled to Seller copies of have a representative on any reports phone or other contact made by Buyer to a governmental authority and present at any meeting by Buyer with a governmental authority. In the event Buyer contacts any governmental authority with respect to any matter other than environmental matters relating to any testing or other inspection the Property, Buyer shall provide Seller with prior notice of the Property performed by Purchaser or its agents, employees or contractorssuch contact. Purchaser Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Pacific Gulf Properties Inc)
Entry and Indemnity. In connection with any entry by Purchaser, or its agents, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove the scope and methodology of such proposed testing within one (1) business day after receipt of such notice (three (3) business days after receipt of if such noticenotice proposes invasive or intrusive testing), such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractors. Purchaser shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by Purchaser, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or if the sale is not consummated, beyond the termination of this Agreement. Nothing in this Paragraph 8.17 shall be construed to limit or impair Purchaser's absolute right to terminate under Paragraph 3.
Appears in 1 contract
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's or WCI's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site onsite testing, Purchaser Buyer shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. In the event that Buyer proposes to conduct Phase II testing, or any invasive testing, including but not limited to, core drilling, or roof sampling, Buyer shall proceed only with Seller's approval, and Seller shall approve or disapprove the scope and methodology of such proposed testing within three (3) business days after receipt of such notice, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon at Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees or contractors. Purchaser Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller and WCI, and each of them, harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's attorneys' fees) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Impax Laboratories Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove the scope and methodology of such disapprove, in Seller's sole discretion, any proposed intrusive testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing tenant interview or other inspection any testing, inspection, or due diligence review performed on with respect to the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any tenant without first obtaining the prior written consent of Seller, which shall not be unreasonably withheld or delayed, and Seller, at Seller's election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to tenant and present at any meeting by Buyer with a tenant. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance consistent with Seller's requirements for other contractors and vendors and in any event, adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys' fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer's right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's ’s tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser Buyer shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. In the event that Buyer proposes to perform any destructive or invasive testing, Seller shall approve or disapprove disapprove, in Seller’s sole and absolute discretion, the scope and methodology of such proposed destructive or invasive testing within three (3) business days after receipt of such notice, such approval to be within the sole and unfettered discretion of . Seller; Seller's ’s failure to notify Purchaser of its approval or disapproval provide such notice shall be deemed to be Seller's disapproval thereofdisapproval. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon at Seller's ’s request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's ’s request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees or contractors. Purchaser shall maintainPrior to conducting any inspection of the Property, and shall assure Buyer will obtain (or ensure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or consultants and contractors, as applicable, will obtain) and provide to Seller a certificate of insurance evidencing Buyer’s or Buyer’s agents’, consultants’ and contractors’, as applicable, procurement of: (a) commercial general liability insurance from an insurer reasonably acceptable to Seller in an amount not less than One Million Dollars ($1,000,000) per occurrence and not less than Two Million Dollars ($2,000,000) on a general aggregate basis for bodily injury, death and property damage, and excess (umbrella) liability insurance with liability insurance with limits of not less than Five Million Dollars ($5,000,000) per occurrence, insuring against any liability arising out of any entry entry, test or inspections investigation of the Property pursuant to the provisions hereof, and Purchaser (b) workers’ compensation insurance having limits no less than those required by applicable state and federal statutes. Buyer’s commercial general liability insurance shall provide name Seller as an additional insured, and shall be primary and non-contributing with evidence any other insurance of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's attorneys’ fees) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings testing or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testing. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site invasive testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s reasonable discretion, the scope and methodology of such proposed testing within three two (32) business days after receipt of such notice. If Seller fails to respond within such two (2) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave approved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property, provided that the lack of availability of a representative of Seller shall not prevent or delay any testing, inspection or review by Buyer. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any third-party prepared reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority (other than with respect to obtaining confirmation of current factual information, such as zoning verification) without first obtaining the prior written consent of Seller thereto in Seller’s reasonable discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority and present at any meeting by Buyer with a governmental authority. From and after the Effective Date, Buyer shall have the right to conduct tenant interviews. Buyer shall notify Seller of those tenants which Buyer intends to interview prior to actually conducting the interview(s). Buyer shall permit Seller or its representative to be present to observe any tenant interview, provided that the lack of availability of a representative of Seller shall not prevent or delay any tenant interview. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to the negligence or willful misconduct of Buyer or any of Buyer’s agent, employees or contractors during any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property arising out of or release related to the negligence or willful misconduct of hazardous substances Buyer or materials onto Buyer’s agents, employees or contractors; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or consultants do not exacerbate the condition, and further provided that Buyer shall not be liable to Seller for any costs, damages, liabilities, losses, expenses, liens or claims arising directly as a result of the negligence or willful misconduct of Seller or Seller’s agents, employees or contractors. The provisions of this Section 9.3 shall be in addition to any access or indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (American Realty Capital - Retail Centers of America, Inc.)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants the Tenant, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any air sampling, borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Other than a Phase I environmental investigation, which shall not require consent, Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any final reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants; provided, however, Seller may not rely upon the accuracy of any such documentation and Buyer makes no representation or warranty concerning the accuracy thereof. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or the Tenant without first notifying Seller and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to the Tenant and present at any meeting by Buyer with the Tenant (except that, notwithstanding the foregoing, Buyer need not notify Seller with respect to any routine conversations with any governmental agency in connection with the procurement of a zoning letter from any such governmental agency.) Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Seller and Seller’s lender shall be named as additional insureds on such insurance. Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Except for the negligence or willful misconduct of Seller and its agents, employees and contractors, Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Entry and Indemnity. In connection with any entry by Purchaser, Buyer or its agents, employees or contractors Buyer's Agents onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants tenants, (c) in compliance with all applicable Laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site invasive testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereofthereof (which may be by email), including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller's sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors Buyer's Agents take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the written request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agentsBuyer's Agents. Notwithstanding anything to the contrary contained herein, employees Buyer shall not contact any tenant without first obtaining the prior written consent of Seller thereto in Seller's sole discretion, and Seller, at Seller's election, shall be entitled to have a representative participate in any telephone or contractorsother contact made by Buyer to a tenant and present at any meeting by Buyer with a tenant. Purchaser Buyer may contact any governmental authority in accordance with customary due diligence of real property; provided, that, (i) Buyer delivers prior written notice to Seller of and Seller, at Seller's election, shall be entitled to have a representative participate in or present at (as applicable) any telephone or video conference communications or in-person meetings with any governmental authority, and (ii) Buyer copies (including via e-mail) Seller on all written correspondence with any governmental authority, including promptly providing Seller with copies of any written correspondence delivered (including via e-mail) by such a governmental authority in response thereto. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or contractors, Buyer and Buyer's Agents arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys' fees and disbursements) arising out of or relating to any entry on the Property by Purchaser, its agents, employees Buyer or contractors Buyer's Agents in the course of performing the inspections, testings testing or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller for any damages or losses: (i) to the extent resulting from Seller’s or its representatives gross negligence or willful misconduct, or (ii) solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer or release Buyer's Agents do not exacerbate the condition. The provisions of hazardous substances this Section 3.1(b) shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 3.1(b) and such access or indemnity agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 3.1(b) shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer's right of entry, as provided in this Section 3.1(b), shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Strategic Opportunity REIT II, Inc.)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants ’s tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including but not limited to any air sampling, borings, drillings or other samplings, Buyer shall give Seller written notice thereofthereof (which notice may be provided by email to Xxxxxx Xxxxxx and Xxxxx Xxxxxx at the following email addresses: xxxxxxx@xxxxxxxxxxxxxx.xxx; xxxxxxx@xxxxxxxxxxxxxx.xxx), including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller’s sole discretion, the scope and methodology of such proposed testing within three twenty-four (324) business days hours after receipt of such notice. If Seller fails to respond within such twenty-four (24) hour period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller (without representation or warranty of any kind, and at no cost or expense to Buyer) copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority or any tenant without first obtaining the prior written consent of Seller thereto in Seller’s sole discretion, and Seller, at Seller’s election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority or tenant and present at any meeting by Buyer with a governmental authority or tenant. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (but in no event less than Two Million Dollars ($2,000,000) with respect to any liability insurance) and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Seller and Seller’s lender shall be named as additional insureds on such insurance. Buyer shall provide Seller with evidence of such insurance coverage upon request by Sellerprior to any entry on the Property. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys’ fees and disbursements) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or release consultants do not exacerbate the condition. The provisions of hazardous substances this Section 9.3 shall be in addition to any access or materials onto indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer’s right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (KBS Strategic Opportunity REIT, Inc.)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent reasonably possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove disapprove, in Seller's sole discretion, the scope and methodology of such proposed testing within three (3) business days after receipt of such notice. If Seller fails to respond within such three (3) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave disapproved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser Buyer shall promptly deliver not contact any governmental authority with respect to Seller copies of any reports environmental matter relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractors. Purchaser shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by Purchaser, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excludingexcept for the sole and limited purpose of obtaining information necessary to prepare a Phase I environmental study, howeverwithout first obtaining the prior written consent of Seller thereto, and Seller, at Seller's election, shall be entitled to have a representative on any costs incurred phone or other contact made by Seller in supervising Purchaser's testingBuyer to a governmental authority and present at any meeting by Buyer with a governmental authority. The foregoing indemnity shall survive beyond In the Closing, or if the sale is not consummated, beyond the termination of this Agreement.event Buyer contacts any governmental authority with respect to
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Pacific Gulf Properties Inc)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith (a) during normal business hours, (b) so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants tenants, (c) in compliance with all applicable laws, and (d) otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site invasive testing, Purchaser including but not limited to any borings, drillings or samplings, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope and methodology of the testing. Seller shall approve or disapprove disapprove, in Seller's reasonable discretion, the scope and methodology of such proposed testing within three two (32) business days after receipt of such notice. If Seller fails to respond within such two (2) business day period, such approval to be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval Seller shall be deemed to be Seller's disapproval thereofhave approved the proposed testing. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Buyer shall permit Seller or its representative may to be present to observe any testing or other inspection or due diligence review performed on or at the Property, provided that the lack of availability of a representative of Seller shall not prevent or delay any testing, inspection or review by Buyer. Upon the request of Seller's request, Purchaser Buyer shall promptly deliver to Seller copies of any third-party prepared reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees representatives, employees, contractors or contractorsconsultants. Purchaser Notwithstanding anything to the contrary contained herein, Buyer shall not contact any governmental authority (other than with respect to obtaining confirmation of current factual information, such as zoning verification) without first obtaining the prior written consent of Seller thereto in Seller's reasonable discretion, and Seller, at Seller's election, shall be entitled to have a representative participate in any telephone or other contact made by Buyer to a governmental authority and present at any meeting by Buyer with a governmental authority. From and after the Effective Date, Buyer shall have the right to conduct tenant interviews. Buyer shall notify Seller of those tenants which Buyer intends to interview prior to actually conducting the interview(s). Buyer shall permit Seller or its representative to be present to observe any tenant interview, provided that the lack of availability of a representative of Seller shall not prevent or delay any tenant interview. Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, court costs and reasonable attorney's feesattorneys' fees and disbursements) arising out of or relating to the negligence or willful misconduct of Buyer or any of Buyer's agent, employees or contractors during any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings testings, or inquiries provided for in this Agreement, including including, without limitation limitation, any release of Hazardous Materials or any damage to the Property arising out of or release related to the negligence or willful misconduct of hazardous substances Buyer or materials onto Buyer's agents, employees or contractors; provided that Buyer shall not be liable to Seller solely as a result of the discovery by Buyer of a pre-existing condition on the Property to the extent the activities of Buyer, its agents, representatives, employees, contractors or consultants do not exacerbate the condition, and further provided that Buyer shall not be liable to Seller for any costs, damages, liabilities, losses, expenses, liens or claims arising directly as a result of the negligence or willful misconduct of Seller or Seller's agents, employees or contractors. The provisions of this Section 9.3 shall be in addition to any access or indemnity agreement previously executed by Buyer in connection with the Property; provided that in the event of any inconsistency between this Section 9.3 and such other agreement, excluding, however, any costs incurred by Seller in supervising Purchaser's testingthe provisions of this Section 9.3 shall govern. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement. Buyer's right of entry, as provided in this Section 9.3, shall continue up through the date of Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital - Retail Centers of America, Inc.)
Entry and Indemnity. In connection with any entry by PurchaserBuyer, or its agents, employees or contractors onto the Property, Purchaser Buyer shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's ’s business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser including any destructive or invasive testing, Buyer shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. In the event that Buyer proposed to perform any destructive or invasive testing, Seller shall approve or disapprove the scope and methodology of such proposed testing within three (3) business days after receipt of such noticedisapprove, which such approval to shall not be within the sole and unfettered discretion of Seller; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereofunreasonably withheld. If Purchaser Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, upon at Seller's ’s request, Purchaser Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its their representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's ’s request, Purchaser Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser Buyer or its agents, employees or contractors. Purchaser Buyer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (public liability in a combined single limit of not less than $2,000,000) and in form and substance adequate to insure against all liability of Purchaser, Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Purchaser Buyer shall indemnify, defend indemnify and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's attorneys’ fees) arising out of or relating to any entry on the Property by PurchaserBuyer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testingexpenses or claims due to Seller’s gross negligence or intentional misconduct. The foregoing indemnity shall survive beyond the Closing, or or, if the sale is not consummated, beyond the termination of this Agreement.
Appears in 1 contract
Entry and Indemnity. In connection with any entry by Purchaser, or its agents, employees or contractors (collectively "Purchaser's Agents") onto the Property, Purchaser shall give Seller reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith so as to minimize, to the greatest extent possible, interference with Seller's business and the business of Seller's tenants and otherwise in a manner reasonably acceptable to Seller. Without limiting the foregoing, prior to any entry to perform any on-site testing, Purchaser shall give Seller notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall approve or disapprove the scope and methodology of such proposed testing within three two (32) business days after receipt of such notice, such approval not to be within the sole and unfettered discretion of Sellerunreasonably withheld; Seller's failure to notify Purchaser of its approval or disapproval shall be deemed to be Seller's disapproval thereof. If Purchaser or its agents, employees or contractors Purchaser's Agents take any sample from the Property in connection with any such approved testing, upon Seller's request, Purchaser shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon Seller's request, Purchaser shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Purchaser or its agents, employees or contractorsPurchaser's Agents. Purchaser shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts (public liability in a combined single limit of not less than $5,000,000.00) and in form and substance adequate to insure against all liability of Purchaser and Purchaser, its agents, employees or contractors, 's Agents arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Purchaser shall provide Seller with evidence of such insurance coverage upon request by SellerSeller including evidence that Seller is an additional insured on the public liability policy. Purchaser shall indemnify, defend and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney's fees) arising out of or relating to any entry on the Property by Purchaser and Purchaser, its agents, employees or contractors 's Agents in the course of performing the inspections, testings or inquiries provided for in this Agreement, including without limitation damage to the Property or release of hazardous substances or materials onto the Property, excluding, however, any costs incurred by Seller in supervising Purchaser's testingtesting or any matters relating to Purchaser's discovery of Hazardous Materials on the Property. The foregoing indemnity shall survive beyond the Closing, or if the sale is not consummated, beyond the termination of this Agreement. Nothing in this Paragraph 8.14 shall be construed to limit or impair Purchaser's absolute right to terminate under Paragraph 3.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (General Growth Properties Inc)
