Common use of Feasibility Period Clause in Contracts

Feasibility Period. During the period commencing on the Effective Date and terminating at 5:00 p.m. Mountain time on September 16, 2022 (the “Feasibility Period”), Buyer shall have the opportunity to conduct all due diligence with regard to the Property by analyzing the feasibility of its ownership, operation, and use of the Property. Buyer is solely responsible for any and all costs incurred by Buyer in connection with its review and/or investigations of the matters set forth in this Section 5(b), Buyer shall conduct such independent investigations, studies and tests as Buyer deems necessary and appropriate, in its sole and absolute discretion, concerning Xxxxx’s proposed ownership, operation, use and development of the Property and the suitability of the Property for Buyer’s intended purposes. Buyer and its agents, employees, consultants and representatives, including, without limitation, Xxxxx’s engineers and contractors (collectively, “Buyer’s Representatives”), shall have the right to enter upon the Property at all times during the pendency of this Agreement in order to make, at Buyer’s sole expense, such investigations and studies as Buyer deems necessary or advisable, in Buyer’s sole and absolute discretion, including a standard ATSM Phase I environmental report and an ALTA survey. Buyer shall restore the Property to substantially its condition prior to commencement of the work. Buyer shall promptly pay all expenses arising out of such inspections on or about the Property and will not allow any mechanic’s or materialmen’s liens to be recorded on the Property. Buyer shall promptly repair any damage to the Property caused by such inspections and other work performed by Xxxxx or on Xxxxx’s behalf. If Buyer determines, in Xxxxx’s sole and absolute discretion, to purchase the Property, then Buyer shall deliver to Seller and Escrow Agent written notice of approval (the “Notice of Approval”) on or before the expiration of the Feasibility Period. If Buyer determines, in Xxxxx’s sole and absolute discretion, that it elects not to purchase the Property, then Buyer shall deliver to Seller and Escrow Agent a written notice of disapproval (the “Notice of Disapproval”) at any time on or before the expiration of the Feasibility Period. Buyer’s failure to deliver a Notice of Approval or a Notice of Disapproval on or before the expiration of the Feasibility Period shall be deemed to constitute Buyer’s timely delivery of a Notice of Disapproval. If Buyer delivers (or is deemed to deliver) the Notice of Disapproval on or before the expiration of the Feasibility Period, then this Agreement shall terminate and neither party shall have any liability under this Agreement except as expressly survives termination of this Agreement. Buyer shall indemnify and hold harmless Seller, Seller’s employees and agents, and all of their respective successors and assigns (collectively, “Seller Parties”) from and against any and all claims, liabilities, losses, costs, damages or expenses of any kind, including, without limitation, reasonable attorneys’ fees, incurred or suffered by the Seller Parties to the extent the same directly result from the negligence of Buyer in any of the Buyer’s activities with respect to the Property under this Section. Notwithstanding anything herein to the contrary, Xxxxx’s restoration and/or indemnification obligations set forth herein shall not be deemed to apply to changes, claims, liabilities, losses, costs, damages or expenses to the extent arising from or relating to (1) the negligent acts, the omissions, or the willful misconduct of any of the Seller Parties or their invitees, or (2) the presence of any latent defects or Hazardous Substances (as defined below) discovered on, under or through the Property not created or negligently exacerbated by Buyer, and/or the disclosure of any such latent defects or Hazardous Substances. The Parties respective obligations under this Section shall survive the Closing and termination of this Agreement. The indemnification obligation of Buyer contained in this Section 4 shall survive the termination of this Agreement.

Feasibility Period. During the period commencing (a) Buyer shall have until 5 p.m. Pacific Time, on the Effective Date forty fifth (45th) day after all of the Schedules have been completed and terminating at 5:00 p.m. Mountain time on September 16all of the Exhibits have been agreed to by the parties, 2022 as confirmed in writing by both Buyer and Seller (the “Feasibility Period”), within which to conduct Buyer’s due diligence review of the Assets and the business conducted therewith. Such due diligence review may include, but not be limited to, a review of the Due Diligence Materials, matters related to the construction and the operation of the Real Property and its compliance with law, zoning investigations, soil studies, environmental assessments, surveys, structural inspections, pest inspections, seismic assessments, wetlands reports, assessment of the needs and the propriety of residency by current residents, the Financial Statements (as defined below) and Census Reports (as defined below), policies and procedures, advertising, the Books and Records, the Leases, the Contracts, accounts payable records, rent rolls, operating statements, and labor costs. If within fourteen (14) days after the Effective Date Buyer and Seller have not agreed to the Schedules and Exhibits, either party may terminate this Agreement. Such termination shall be treated as if Buyer elected to terminate the Agreement as provided in Section 7(c) hereof. (b) During the Feasibility Period, Buyer shall be permitted reasonable access to the Real Property during normal business hours to complete inspections and tests subject to the rights of residents in possession. Seller shall have the opportunity right to designate a representative for purposes of coordinating and overseeing Buyer’s on-site due diligence investigation. Buyer shall give Seller’s designated representative, if any, advance notice of its investigation of the Real Property, describing the nature of the review work to be undertaken and the estimated duration of the review. A representative of Seller shall have the right to accompany Buyer and its agents, representatives and contractors that are performing tests on or about the Real Property in connection with such testing and to limit the duration, frequency and means of such testing to the extent necessary to avoid disruption of residents of the Real Property providing that no such limitation shall unreasonably interfere with Buyer’s ability to conduct all such tests or to have the same conducted on Buyer’s behalf. Buyer covenants that it will conduct its tests and other due diligence activities in a professional manner and in a manner which minimizes interference with regard to the Property by analyzing the feasibility of its ownership, operation, and use residents of the Real Property. Buyer is solely responsible for any shall indemnify, defend and hold Seller harmless from and against all costs incurred by Buyer in connection with its review and/or investigations losses, damages, liabilities, claims, fines, penalties, causes of action and expenses arising from or out of the matters set forth in this Section 5(b)presence or activities of Buyer or its agents, employees, representatives, consultants, or contractors on the Real Property, both before and after Closing and, if Buyer does not purchase the Assets, Buyer shall conduct repair any damage to the Real Property caused by such independent investigations, studies and tests as presence or activities. The terms of this Section 7(b) shall survive Closing or termination of this Agreement. (c) In the event that at or prior to the end of the Feasibility Period Buyer deems necessary and appropriateconcludes, in its sole and absolute discretion, concerning Xxxxx’s proposed ownership, operation, use and development of the Property and the suitability of the Property for that it is not satisfied with its due diligence review Buyer may terminate this Agreement upon Buyer’s intended purposes. Buyer and its agents, employees, consultants and representatives, including, without limitation, Xxxxx’s engineers and contractors (collectively, “Buyer’s Representatives”), shall have the right to enter upon the Property at all times during the pendency delivery of this Agreement in order to make, at Buyer’s sole expense, such investigations and studies as Buyer deems necessary or advisable, in Buyer’s sole and absolute discretion, including a standard ATSM Phase I environmental report and an ALTA survey. Buyer shall restore the Property to substantially its condition prior to commencement of the work. Buyer shall promptly pay all expenses arising out of such inspections on or about the Property and will not allow any mechanic’s or materialmen’s liens to be recorded on the Property. Buyer shall promptly repair any damage to the Property caused by such inspections and other work performed by Xxxxx or on Xxxxx’s behalf. If Buyer determines, in Xxxxx’s sole and absolute discretion, to purchase the Property, then Buyer shall deliver to Seller and Escrow Agent written notice of approval (the “Notice of Approval”) on or before the expiration of the Feasibility Period. If Buyer determines, in Xxxxx’s sole and absolute discretion, that it elects not to purchase the Property, then Buyer shall deliver to Seller and Escrow Agent a written notice of disapproval (the “Notice of Disapproval”) at any time on or before the expiration of the Feasibility Period. Buyer’s failure termination to deliver a Notice of Approval or a Notice of Disapproval on or before the expiration of the Feasibility Period shall be deemed to constitute Buyer’s timely delivery of a Notice of Disapproval. If Buyer delivers (or is deemed to deliver) the Notice of Disapproval Seller on or before the expiration of the Feasibility Period, then this Agreement shall terminate and after which neither party shall have any liability further obligation to the other hereunder with the exception of Buyer’s obligations under this Section 7 and Section 18 and Buyer’s right to secure the immediate return of the Deposit. If Buyer fails to notify Seller in writing of Buyer’s election to terminate this Agreement except as expressly survives termination at or prior to the expiration of this Agreement. the Feasibility Period, Buyer shall indemnify and hold harmless Seller, Seller’s employees and agents, and all of their respective successors and assigns (collectively, “Seller Parties”) from and against any and all claims, liabilities, losses, costs, damages or expenses of any kind, including, without limitation, reasonable attorneys’ fees, incurred or suffered by the Seller Parties to the extent the same directly result from the negligence of Buyer in any of the Buyer’s activities with respect to the Property under this Section. Notwithstanding anything herein to the contrary, Xxxxx’s restoration and/or indemnification obligations set forth herein shall not be deemed to apply have elected to changes, claims, liabilities, losses, costs, damages or expenses have waived its right to the extent arising from or relating terminate this Agreement pursuant to (1) the negligent acts, the omissions, or the willful misconduct of any this Section 7 and Section 7 of the Seller Parties or their invitees, or (2) the presence of any latent defects or Hazardous Substances Related Agreements (as defined below) discovered on, under or through the Property not created or negligently exacerbated by Buyer, and/or the disclosure of any such latent defects or Hazardous Substances. The Parties respective obligations under this Section shall survive the Closing and termination of this Agreement. The indemnification obligation of Buyer contained in this Section 4 shall survive the termination of this Agreement).

Feasibility Period. During the period commencing on (a) Buyer shall have forty-five (45) days from the Effective Date and terminating at 5:00 p.m. Mountain time on September 16, 2022 (the “Feasibility Period”)) to conduct, Buyer shall have the opportunity to conduct all due diligence with regard to the Property by analyzing the feasibility of at its ownershipsole cost and expense, operation, and use of the Property. Buyer is solely responsible for any and all costs incurred by Buyer in connection with its review and/or investigations of the matters set forth in this Section 5(b), Buyer shall conduct such independent investigations, studies and tests as Buyer deems to be necessary and appropriate, in its sole and absolute discretion, or appropriate concerning XxxxxBuyer’s proposed ownership, operation, use and use, development of the Property and the and/or suitability of the Property for Buyer’s intended purposes; provided, however, that in the event of any damage to the Property or any adjoining property as a result of the conduct such inspections, Buyer shall, at its sole cost and expense, immediately restore the Property or any such adjoining property to its condition as existed immediately prior to such damage or destruction, failing which Sellers shall be entitled to undertake and complete such restoration and charge Buyer for the cost thereof. Buyer and its agents, employees, consultants and representatives, includingSuch investigation may include, without limitation, Xxxxx’s engineers appraisals, soils and contractors (collectivelyengineering tests, “intrusive testing, environmental studies, hazardous substance studies, biological surveys, property surveys, investigation concerning the availability of development approvals required from any governmental agencies for Buyer’s Representatives”)proposed operation, use, or development of the Property, the imposition or increase of any fees, change, or exceptions by any governmental agencies and such economic feasibility and marketing studies deemed appropriate. Buyer may freely consult with any governmental agency concerning the condition of the Property, the project, its entitlements or regulatory terms and conditions of approval. (b) Buyer shall have the right be entitled to enter upon the Property at all times during the pendency of terminate this Agreement in order the event that any such inspection is unacceptable to make, at Buyer’s sole expense, such investigations and studies as Buyer deems necessary or advisable, in Buyer’s sole and absolute discretion, including by delivering to Sellers, with a standard ATSM Phase I environmental report and an ALTA survey. Buyer shall restore the Property to substantially its condition prior to commencement of the work. Buyer shall promptly pay all expenses arising out of such inspections on or about the Property and will not allow any mechanic’s or materialmen’s liens to be recorded on the Property. Buyer shall promptly repair any damage copy to the Property caused by such inspections and other work performed by Xxxxx or on Xxxxx’s behalf. If Buyer determinesEscrow Agent, in Xxxxx’s sole and absolute discretion, to purchase the Property, then Buyer shall deliver to Seller and Escrow Agent of a written notice of approval termination on or before 5:00 p.m. (the “Notice of Approval”Pacific Time) on or before prior to the expiration of the Feasibility Period. If In the event of such timely termination, the Deposit to the extent then paid shall be returned to Buyer. In the event that Buyer determinesdoes not timely terminate this Agreement as herein provided, in Xxxxx’s sole then, it shall be conclusively presumed that Buyer has approved and absolute discretion, that it elects not to purchase accepted the Property, then Property and Buyer shall deliver be obligated to Seller and Escrow Agent a written notice immediately pay to escrow agent the Additional Deposit as provided in clause (b) of disapproval (the “Notice of Disapproval”) at any time on or before the expiration of the Feasibility Period. Buyer’s failure to deliver a Notice of Approval or a Notice of Disapproval on or before the expiration of the Feasibility Period shall be deemed to constitute Buyer’s timely delivery of a Notice of Disapproval. If Buyer delivers (or is deemed to deliver) the Notice of Disapproval on or before the expiration of the Feasibility Period, then this Agreement shall terminate and neither party shall have any liability under this Agreement except as expressly survives termination of this Agreement. Buyer shall indemnify and hold harmless Seller, Seller’s employees and agentsSection 2 hereof, and all of their respective successors and assigns (collectively, “Seller Parties”) from and against any and all claims, liabilities, losses, costs, damages or expenses of any kind, including, without limitation, reasonable attorneys’ fees, incurred or suffered by the Seller Parties Deposits shall thereupon be non-refundable to the extent the same directly result from the negligence of Buyer in any of the Buyer’s activities with respect to the Property under this Section. Notwithstanding anything herein to the contrary, Xxxxx’s restoration and/or indemnification obligations set forth herein shall not be deemed to apply to changes, claims, liabilities, losses, costs, damages or expenses to the extent arising from or relating to (1) the negligent acts, the omissions, or the willful misconduct of any of the Seller Parties or their invitees, or (2) the presence of any latent defects or Hazardous Substances (as defined below) discovered on, under or through the Property not created or negligently exacerbated by Buyer, and/or the disclosure of any such latent defects or Hazardous Substances. The Parties respective obligations under this Section shall survive the Closing and termination of this Agreement. The indemnification obligation of Buyer contained except as otherwise provided in this Section 4 shall survive Agreement and in the termination event of this AgreementSellers’ default as herein provided.

Feasibility Period. During the period commencing on upon the Effective Date hereof and terminating expiring at 5:00 p.m. Mountain central time on September 16the date which is fourteen (14) calendar days thereafter or the next succeeding Business Day if such fourteenth day is not a Business Day, 2022 Purchaser and Purchaser’s representatives, agents, employees, consultants, inspectors, appraisers, engineers and contractors (collectively the “Purchaser’s Parties”) shall have the right of investigation and inspection of the Property, documents, reports, studies and plans, in Seller’s current possession or control, as listed on attached Exhibit C (collectively the “Seller’s Materials”) and any other information, reasonably requested by Purchaser at no cost to Seller relating to the Property in Seller’s possession or control, during the remainder of the Access Period (“Feasibility Period”), Buyer shall have the opportunity ) to conduct all due diligence with regard to the Property by analyzing the feasibility of its ownership, operation, and use of the Property. Buyer is solely responsible for any and all costs incurred by Buyer in connection with its review and/or investigations of the matters set forth in this Section 5(b), Buyer shall conduct such independent investigations, studies and tests as Buyer deems necessary and appropriatedetermine, in its sole and absolute discretion, concerning Xxxxx’s proposed ownership, operation, use and development of the Property and the suitability of the Property for Buyer’s intended purposes. Buyer and its agents, employees, consultants and representatives, including, without limitation, Xxxxx’s engineers and contractors (collectively, “Buyer’s Representatives”), shall have the right to enter upon the Property at all times during the pendency of this Agreement in order to make, at Buyer’s sole expense, such investigations and studies as Buyer deems necessary or advisable, in BuyerPurchaser’s sole and absolute discretion, including a standard ATSM Phase I environmental report and an ALTA survey. Buyer shall restore whether or not the Property is acceptable to substantially its condition prior to commencement of the workPurchaser and suitable for Purchaser’s intended use. Buyer Purchaser shall promptly pay all expenses arising out of such inspections on or about the Property and will not allow any mechanic’s or materialmen’s liens to be recorded on the Property. Buyer shall promptly repair any damage provided access to the Property caused by upon prior written notice to Seller in accordance with the procedure set forth in Section 2.03(a) for the sole purpose of conducting such inspections non-invasive investigations, inspections, audits, analyses, surveys, tests, examinations, and other work performed by Xxxxx studies of the Property as Purchaser has deemed necessary or on Xxxxxdesirable to determine whether the Property is suitable for Purchaser’s behalf. If Buyer determines, purposes in XxxxxPurchaser’s sole and absolute discretion. Purchaser’s access to the Property shall be governed by the terms of this Contract. Purchaser shall not alter or damage the Property in any manner and Purchaser shall not permit any mechanic’s liens to be filed against all or any part of the Property that arise from Purchaser’s or Purchaser Parties’ activities concerning the Property. Seller shall have the absolute right to be present at all times when any of the Purchaser Parties are present at the Property pursuant to this Contract. (a) In exercising its right of access to, to purchase or inspection of, the Property, then Buyer Purchaser shall deliver notify Seller's representative, ____________ at ________________ at least one (1) Business Day (or such shorter period as approved by Seller’s representative by email) prior to any proposed access to the Property (each of which must be expressly approved in advance by Seller by electronic mail) to perform inspections and Escrow Agent written notice tests of approval (the “Notice of Approval”) on or before the expiration of the Feasibility Period. If Buyer determines, in Xxxxx’s sole and absolute discretion, that it elects not to purchase the Property, then Buyer shall deliver to Seller including surveys, environmental studies and Escrow Agent a written notice examinations. All such inspections and tests undertaken by or on behalf of disapproval (the “Notice of Disapproval”) at any time on or before the expiration of the Feasibility Period. Buyer’s failure to deliver a Notice of Approval or a Notice of Disapproval on or before the expiration of the Feasibility Period Purchaser shall be deemed conducted in strict accordance with all applicable laws and regulations and in a manner reasonably acceptable to constitute BuyerSeller. (b) Purchaser shall not be entitled to contact any Protected Party (hereinafter defined), whether directly or indirectly, by e-mail or personal contact, or through any intermediaries, without Seller’s timely delivery of a Notice of Disapprovalprior written consent, except that Purchaser and Purchaser Parties shall be permitted without Seller’s consent to conduct routine municipal lien search/zoning analysis and building permit searches with all applicable governmental authorities. If Buyer delivers (or is deemed to deliver) Seller shall provide Purchaser and Purchaser Parties with reasonable contact and communication during the Notice of Disapproval on or before the expiration of the Feasibility Period, then this Agreement shall terminate and neither party shall have any liability under this Agreement except as expressly survives termination term of this AgreementContract to an on-site property representative. Buyer shall indemnify and hold harmless Seller (and, at Seller’s option, Seller’s employees and agents, and all of their respective successors and assigns counsel) shall have the absolute right to be present at any meetings (collectively, “Seller Parties”including meetings conducted by telephone) from and against with any and all claims, liabilities, losses, costs, damages or expenses Protected Party. Purchaser shall provide copies of any kindcorrespondence sent to or received from any such Protected Party within two (2) Business Days after receipt or dispatch, includingas the case may be. Purchaser shall not have the right to make any commitments to any Protected Party that are in any way binding on Seller or the Property. As used herein, without limitation, reasonable attorneys’ fees, incurred or suffered by the Seller Parties to the extent the same directly result from the negligence of Buyer in term “Protected Party” shall mean any of the Buyer’s activities with respect following: (a) any person or entity currently engaged by Seller to provide design, engineering, construction or other services for all or any portion of the Property under this Section. Notwithstanding anything herein except that Purchaser shall be permitted to use the contrarySeller’s surveyor, Xxxxxtitle company, environmental company and physical inspector for Purchaser’s restoration and/or indemnification obligations set forth herein shall not be deemed to apply to changesthird party diligence reports, claims, liabilities, losses, costs, damages and (b) any governmental or expenses to quasi-governmental authority with jurisdiction over the extent arising from or relating to (1) the negligent acts, the omissions, or the willful misconduct of any of the Seller Parties or their invitees, or (2) the presence of any latent defects or Hazardous Substances (as defined below) discovered on, under or through the Property not created or negligently exacerbated by Buyer, and/or the disclosure of any such latent defects or Hazardous Substances. The Parties respective obligations under this Section shall survive the Closing and termination of this Agreement. The indemnification obligation of Buyer contained in this Section 4 shall survive the termination of this AgreementProperty.

Feasibility Period. During the period commencing (a) Buyer shall have until 5 p.m. Pacific Time, on the Effective Date forty fifth (45th) day after all of the Schedules have been completed and terminating at 5:00 p.m. Mountain time on September 16all the Exhibits have been agreed to by the parties, 2022 as confirmed in writing by both Buyer and Seller (the “Feasibility Period”), within which to conduct Buyer’s due diligence review of the Assets and the business conducted therewith. Such due diligence review may include, but not be limited to, a review of the Due Diligence Materials, matters related to the construction and the operation of the Real Property and its compliance with law, zoning investigations, soil studies, environmental assessments, surveys, structural inspections, pest inspections, seismic assessments, wetlands reports, assessment of the needs and the propriety of residency by current residents, the Financial Statements (as defined below) and Census Reports (as defined below), policies and procedures, advertising, the Books and Records, the Leases, the Contracts, accounts payable records, rent rolls, operating statements, and labor costs. If within fourteen (14) days after the Effective Date Buyer and Seller have not agreed to the Schedules and Exhibits, either party may terminate this Agreement. Such termination shall be treated as if Buyer elected to terminate the Agreement as provided in Section 7(c) hereof. (b) During the Feasibility Period, Buyer shall be permitted reasonable access to the Real Property during normal business hours to complete inspections and tests subject to the rights of residents in possession. Seller shall have the opportunity right to designate a representative for purposes of coordinating and overseeing Buyer’s on-site due diligence investigation. Buyer shall give Seller’s designated representative, if any, advance notice of its investigation of the Real Property, describing the nature of the review work to be undertaken and the estimated duration of the review. A representative of Seller shall have the right to accompany Buyer and its agents, representatives and contractors that are performing tests on or about the Real Property in connection with such testing and to limit the duration, frequency and means of such testing to the extent necessary to avoid disruption of residents of the Real Property providing that no such limitation shall unreasonably interfere with Buyer’s ability to conduct all such tests or to have the same conducted on Buyer’s behalf. Buyer covenants that it will conduct its tests and other due diligence activities in a professional manner and in a manner which minimizes interference with regard to the Property by analyzing the feasibility of its ownership, operation, and use residents of the Real Property. Buyer is solely responsible for any shall indemnify, defend and hold Seller harmless from and against all costs incurred by Buyer in connection with its review and/or investigations losses, damages, liabilities, claims, fines, penalties, causes of action and expenses arising from or out of the matters set forth in this Section 5(b)presence or activities of Buyer or its agents, employees, representatives, consultants, or contractors on the Real Property, both before and after Closing and, if Buyer does not purchase the Assets, Buyer shall conduct repair any damage to the Real Property caused by such independent investigations, studies and tests as presence or activities. The terms of this Section 7(b) shall survive Closing or termination of this Agreement. (c) In the event that at or prior to the end of the Feasibility Period Buyer deems necessary and appropriateconcludes, in its sole and absolute discretion, concerning Xxxxx’s proposed ownership, operation, use and development of the Property and the suitability of the Property for that it is not satisfied with its due diligence review Buyer may terminate this Agreement upon Buyer’s intended purposes. Buyer and its agents, employees, consultants and representatives, including, without limitation, Xxxxx’s engineers and contractors (collectively, “Buyer’s Representatives”), shall have the right to enter upon the Property at all times during the pendency delivery of this Agreement in order to make, at Buyer’s sole expense, such investigations and studies as Buyer deems necessary or advisable, in Buyer’s sole and absolute discretion, including a standard ATSM Phase I environmental report and an ALTA survey. Buyer shall restore the Property to substantially its condition prior to commencement of the work. Buyer shall promptly pay all expenses arising out of such inspections on or about the Property and will not allow any mechanic’s or materialmen’s liens to be recorded on the Property. Buyer shall promptly repair any damage to the Property caused by such inspections and other work performed by Xxxxx or on Xxxxx’s behalf. If Buyer determines, in Xxxxx’s sole and absolute discretion, to purchase the Property, then Buyer shall deliver to Seller and Escrow Agent written notice of approval (the “Notice of Approval”) on or before the expiration of the Feasibility Period. If Buyer determines, in Xxxxx’s sole and absolute discretion, that it elects not to purchase the Property, then Buyer shall deliver to Seller and Escrow Agent a written notice of disapproval (the “Notice of Disapproval”) at any time on or before the expiration of the Feasibility Period. Buyer’s failure termination to deliver a Notice of Approval or a Notice of Disapproval on or before the expiration of the Feasibility Period shall be deemed to constitute Buyer’s timely delivery of a Notice of Disapproval. If Buyer delivers (or is deemed to deliver) the Notice of Disapproval Seller on or before the expiration of the Feasibility Period, then this Agreement shall terminate and after which neither party shall have any liability further obligation to the other hereunder with the exception of Buyer’s obligations under this Section 7 and Section 18 and Buyer’s right to secure the immediate return of the Deposit. If Buyer fails to notify Seller in writing of Buyer’s election to terminate this Agreement except as expressly survives termination at or prior to the expiration of this Agreement. the Feasibility Period, Buyer shall indemnify and hold harmless Seller, Seller’s employees and agents, and all of their respective successors and assigns (collectively, “Seller Parties”) from and against any and all claims, liabilities, losses, costs, damages or expenses of any kind, including, without limitation, reasonable attorneys’ fees, incurred or suffered by the Seller Parties to the extent the same directly result from the negligence of Buyer in any of the Buyer’s activities with respect to the Property under this Section. Notwithstanding anything herein to the contrary, Xxxxx’s restoration and/or indemnification obligations set forth herein shall not be deemed to apply have elected to changes, claims, liabilities, losses, costs, damages or expenses have waived its right to the extent arising from or relating terminate this Agreement pursuant to (1) the negligent acts, the omissions, or the willful misconduct of any this Section 7 and Section 7 of the Seller Parties or their invitees, or (2) the presence of any latent defects or Hazardous Substances Related Agreements (as defined below) discovered on, under or through the Property not created or negligently exacerbated by Buyer, and/or the disclosure of any such latent defects or Hazardous Substances. The Parties respective obligations under this Section shall survive the Closing and termination of this Agreement. The indemnification obligation of Buyer contained in this Section 4 shall survive the termination of this Agreement).

Feasibility Period. During (a) Seller shall allow Buyer and its agents, employees, contractors, and consultants access to the Property to conduct soil and engineering tests, inspections of equipment, personal property, lines and other components of the System and to conduct any other tests Buyer deems necessary or appropriate in its sole and absolute discretion to determine the feasibility of the Property for Buyer’s intended use (the “Feasibility Study”), for a period commencing on of one hundred eighty (180) days after the Effective Date and terminating at 5:00 p.m. Mountain time on September 16, 2022 (the “Feasibility Period”), provided, however, that Seller’s written consent shall be required for any invasive test proposed by Buyer shall have the opportunity to conduct all due diligence with regard to the Property by analyzing the feasibility of its ownership, operation, and use of be conducted on the Property. Buyer is solely responsible shall bear all costs and expenses of its investigation and restore the Property to its condition prior to such investigation, ordinary wear and tear excepted. (b) If Buyer finds the Property unacceptable for any and all costs incurred by Buyer in connection with its review and/or investigations of the matters set forth in this Section 5(b)reason or no reason, Buyer shall conduct such independent investigations, studies and tests as Buyer deems necessary and appropriatethen Buyer, in its sole and absolute discretion, concerning Xxxxx’s proposed ownership, operation, use and development of the Property and the suitability of the Property for Buyer’s intended purposes. Buyer and its agents, employees, consultants and representatives, including, without limitation, Xxxxx’s engineers and contractors (collectively, “Buyer’s Representatives”), shall have the right to enter upon the Property at all times during the pendency of may terminate this Agreement in order to make, at Buyer’s sole expense, such investigations and studies as Buyer deems necessary or advisable, in Buyer’s sole and absolute discretion, including a standard ATSM Phase I environmental report and an ALTA survey. Buyer shall restore the Property to substantially its condition prior to commencement of the work. Buyer shall promptly pay all expenses arising out of such inspections on or about the Property and will not allow any mechanic’s or materialmen’s liens to be recorded on the Property. Buyer shall promptly repair any damage to the Property caused by such inspections and other work performed by Xxxxx or on Xxxxx’s behalf. If Buyer determines, in Xxxxx’s sole and absolute discretion, to purchase the Property, then Buyer shall deliver written notice to Seller and Escrow Agent written notice of approval (the “Notice of Approval”) on or before the expiration of the Feasibility Period. If Buyer determinesso terminates this Agreement, the Title Company shall, upon demand by Xxxxx, promptly return the Xxxxxxx Money to Buyer and thereafter neither Party shall have any further rights, duties or obligations to the other hereunder. (c) Seller shall deliver to Buyer within ten (10) business days after the Effective Date of this Agreement, the most recent title commitments, title policies, surveys, environmental site assessments, preliminary plats and site plans, any cross access and easement documents in Xxxxx’s sole and absolute discretion, that it elects not to purchase connection with the Property, then any development agreements affecting the Property, lease agreements affecting the Property, any customer lists for the System and any other documents Buyer shall deliver to Seller and Escrow Agent a written notice of disapproval (the “Notice of Disapproval”) at any time on or before the expiration of the Feasibility Period. Buyer’s failure to deliver a Notice of Approval or a Notice of Disapproval on or before the expiration of the Feasibility Period shall be deemed to constitute Buyer’s timely delivery of a Notice of Disapproval. If Buyer delivers (or is deemed to deliver) the Notice of Disapproval on or before the expiration of the Feasibility Period, then this Agreement shall terminate and neither party shall have any liability under this Agreement except as expressly survives termination of this Agreement. Buyer shall indemnify and hold harmless Seller, Seller’s employees and agents, and all of their respective successors and assigns (collectively, “Seller Parties”) from and against any and all claims, liabilities, losses, costs, damages or expenses of any kind, including, without limitation, reasonable attorneys’ fees, incurred or suffered by the Seller Parties to the extent the same directly result from the negligence of Buyer in any of the Buyer’s activities with respect may reasonably request related to the Property under this Section. Notwithstanding anything herein to the contrary, Xxxxx’s restoration and/or indemnification obligations set forth herein shall not be deemed to apply to changes, claims, liabilities, losses, costs, damages or expenses to the extent arising from or relating to (1) the negligent acts, the omissions, or the willful misconduct of any of the Seller Parties or their invitees, or (2) the presence of any latent defects or Hazardous Substances (as defined below) discovered on, under or through the Property not created or negligently exacerbated by Buyer, and/or the disclosure of any such latent defects or Hazardous SubstancesSystem. The Parties respective obligations under this Section shall survive the Closing IT IS ACKNOWLEDGED THAT SUCH MATERIALS INCLUDE REPORTS, INVESTIGATIONS, FINDINGS, ANALYSES, CONCLUSIONS, DATA AND OTHER INFORMATION WHICH MAY BE OR HAVE BEEN PREPARED BY THIRD PARTIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BUYER AGREES THAT: (A) SELLER HAS NOT MADE, AND SHALL NOT BE DEEMED TO HAVE MADE, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF THE INFORMATION CONSTITUTING THE DUE DILIGENCE MATERIALS OR THE CONCLUSIONS 3 Purchase and termination of this AgreementSale Agreement CONTAINED THEREIN OR THE QUALIFICATIONS OF THE PERSONS WHO HAVE PREPARED THE DUE DILIGENCE MATERIALS, OR ANY PART THEREOF, AND (B) BUYER’S RELIANCE ON THE DUE DILIGENCE MATERIALS IN DETERMINING WHETHER TO PURCHASE THE PROJECT SHALL BE AT BUYER’S OWN RISK AND SELLER SHALL HAVE NO LIABILITY THEREFOR. The indemnification obligation of Buyer contained in this Section 4 shall survive the termination of this AgreementTHE DUE DILIGENCE MATERIALS ARE DELIVERED OR MADE AVAILABLE WITHOUT REPRESENTATION OR WARRANTY BY SELLER (EXPRESS OR IMPLIED).