Common use of INSPECTION CONTINGENCY Clause in Contracts

INSPECTION CONTINGENCY. Buyer's obligations under this Agreement will be contingent upon Buyer's satisfaction with the result of such inspections (including without limitation, structural, insect, radon) of the Premises as Buyer, at his, her, their or its sole cost, may cause to be conducted on or before the fourteenth (14th) calendar day following the acceptance of the Offer by the Seller. Buyer also will be entitled to re-inspect the Premises, at the Buyer's sole cost, within two (2) calendar days of the Closing for the limited purpose of confirming the condition of the Premises has not changed since the completion of the inspections referred to in the preceding sentence. Buyer and Buyer's inspectors and consultants will be entitled to have reasonable access to the Premises from time to time for the purposes of making such inspections, provided that Buyer will indemnify Seller from any and all liability, claims, damages, losses, costs or expenses, including attorney fees, suffered, paid or incurred by Seller to the extent arising out of or as a consequence of Buyer's exercise of rights under this Section 20. If Buyer is not satisfied with the condition of the Premises or any portion thereof and, on or before the seventeenth (17th) calendar day following the acceptance of the Offer by the Seller, Buyer notifies Seller in writing that Buyer is terminating this Agreement because of such dissatisfaction, then the Deposit will be refunded to Buyer and all other obligations of the parties hereunder will cease and this Agreement will be null and void. If the Buyer fails to terminate this Agreement by giving written notice of termination to Seller on or before the seventeenth (17th) calendar day following acceptance of the Offer by Seller, Buyer will be deemed to have waived his, her, their or its rights to terminate the Agreement pursuant to this Section 20. If §56-7-1 N.M.S.A. 1978 Comp. applies to the inspections carried out pursuant to, and the indemnification obligations arising under, this Section 20, the agreement to indemnify shall not apply to liability, claims, damages, losses, costs or expenses, including attorney fees, arising out of

INSPECTION CONTINGENCY. Buyer's obligations On or before the date that is thirty (30) days after the Effective Date, TRMC shall deliver to TLO written notice of (a) TRMC’s satisfaction or waiver, in TRMC’s sole discretion, with respect to the results of the inspection contingency stated in this Section 4, or (b) the failure of this condition. If TRMC fails to timely deliver such notice to TLO, then this condition shall be deemed not satisfied, and TRMC shall be under no obligation to proceed with the repurchase of the Rail Facility. If TRMC’s inspection contingency followed the exercise of the Right of First Refusal, then following TLO’s receipt of notice of the failure of this inspection contingency by TRMC (or TRMC’s failure to timely deliver the required notice to TLO), TLO shall be free to sell the Rail Facility to the third party submitting the Purchase Offer on the Purchase Terms, and TRMC’s Right of First Refusal, and TLO’s obligation under this Agreement, shall be null and void and without further force or effect. If TLO fails to enter into a Purchase and Sale Agreement will be contingent upon Buyer's satisfaction with the result third party submitting the Purchase Offer on the Purchase Terms, or thereafter the transaction fails to close, then TRMC’s Right of First Refusal shall continue in accordance with the terms of this Agreement for so long as TLO owns the Rail Facility. If TRMC timely notifies TLO of the satisfaction of this condition, then TRMC shall deposit into escrow, with First American Title Insurance Company or such inspections other title insurance company as is satisfactory to the parties (including without limitationthe “Title Company”), structural, insect, radonan amount equal to two percent (2%) of the Premises as Buyer, at his, her, their or its sole cost, may cause to be conducted on or before the fourteenth (14th) calendar day following the acceptance of the Offer by the Seller. Buyer also will be entitled to re-inspect the Premises, at the Buyer's sole cost, within two (2) calendar days of the Closing for the limited purpose of confirming the condition of the Premises has not changed since the completion of the inspections referred to in the preceding sentence. Buyer and Buyer's inspectors and consultants will be entitled to have reasonable access to the Premises from time to time for the purposes of making such inspections, provided that Buyer will indemnify Seller from any and all liability, claims, damages, losses, costs or expenses, including attorney fees, suffered, paid or incurred by Seller to the extent arising out of or as a consequence of Buyer's exercise of rights under this Section 20. If Buyer is not satisfied with the condition of the Premises or any portion thereof and, on or before the seventeenth (17th) calendar day following the acceptance of the Offer by the Seller, Buyer notifies Seller in writing that Buyer is terminating this Agreement because of such dissatisfaction, then the Deposit will be refunded to Buyer and all other obligations of the parties hereunder will cease and this Agreement will be null and void. If the Buyer fails to terminate this Agreement by giving written notice of termination to Seller on or before the seventeenth (17th) calendar day following acceptance of the Offer by Seller, Buyer will be deemed to have waived his, her, their or its rights to terminate the Agreement pursuant to this Section 20. If §56-7-1 N.M.S.A. 1978 Comp. applies to the inspections carried out pursuant toRepurchase Price, and the indemnification obligations arising under, this Section 20, parties shall proceed to close the agreement to indemnify shall not apply to liability, claims, damages, losses, costs or expenses, including attorney fees, arising out ofrepurchase transaction within sixty (60) days thereafter.

INSPECTION CONTINGENCY. Buyer's obligations under this Agreement will be contingent upon Buyer's satisfaction with the result of such inspections (including without limitation, structural, insect, radon) of the Premises as Buyer, at his, her, their or its sole cost, may cause to be conducted on or before the fourteenth (14thf ( ) calendar day following the acceptance of the Offer by the Seller. Buyer Xxxxx also will be entitled to re-inspect the Premises, at the Buyer's sole cost, within two (2( ) calendar days of the Closing for the limited purpose of confirming the condition of the Premises has not changed since the completion of the inspections referred to in the preceding sentenceabove. Buyer Xxxxx and BuyerXxxxx's inspectors and consultants will be entitled to have reasonable access to the Premises from time to time for the purposes of making such inspections, provided that Buyer will indemnify Seller from any and all liability, claims, damages, losses, costs or expenses, including attorney fees, fees suffered, paid or incurred by Seller to the extent arising out of or as a consequence of Buyer's exercise of rights under this Section 20section. If Buyer is not satisfied with the condition of the Premises or any portion thereof and, on or before the seventeenth (17th( ) calendar day following the acceptance of the Offer by the Seller, Buyer notifies Seller in writing that Buyer is terminating this Agreement because of such dissatisfaction, then the Deposit will be refunded to Buyer and all other obligations of the parties hereunder will cease and this Agreement will be null and void. If the Buyer fails to terminate this Agreement by giving written notice of termination to Seller on or before the seventeenth (17th( ) calendar day following acceptance of the Offer by Seller, Buyer will be deemed to have waived his, her, their or its rights to terminate the Agreement pursuant to this Section 20section. If §56-7-1 N.M.S.A. 1978 Comp. applies to the inspections carried out pursuant to, and the indemnification obligations arising under, this Section 2014, the agreement to indemnify shall not apply to liability, claims, damages, losses, costs or expenses, including attorney fees, arising out ofof (i) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications by the indemnitee, or the agents or employees of the indemnitee; or (ii) the giving of or the failure to give directions or instructions by the indemnitee, or the agents or employees of the indemnitee, where such giving or failure to give directions or instructions is the primary cause of bodily injury to persons or damage to property.

INSPECTION CONTINGENCY. Buyer's obligations under this Agreement will be contingent The obligation of Buyer to close hereunder shall be, and hereby is, conditioned upon Buyer's Xxxxx’s waiver of or satisfaction with the result of such inspections (including without limitation, structural, insect, radon) of the Premises as Buyer, at his, her, their or in its sole costdiscretion with, may cause to be conducted on or before during the fourteenth (14th) calendar day following the acceptance of the Offer by the Seller. Buyer also will be entitled to re-inspect the PremisesInspection Contingency Period, at the Buyer's sole cost, within two (2) calendar days of the Closing for the limited purpose of confirming the condition of the Premises has not changed since Property. As used herein, the completion of the inspections referred to in the preceding sentence. Buyer term “Inspection Contingency Period” shall mean and Buyer's inspectors and consultants will be entitled to have reasonable access refer to the Premises from period beginning with the Effective Date and ending at 5:00 p.m. Pacific time on January 15, 2014. On or before ten (10) days after the Effective Date, Seller shall provide to time for Buyer the purposes of making such inspections, provided that documents listed in Exhibit D hereto and shall make available to Buyer will indemnify Seller from any and all liabilityother documents and materials in Seller’s possession related to the ownership, claimsmanagement, damagesconstruction, lossesmaintenance and operation of the Property (the “Due Diligence Materials”). During the Inspection Contingency Period, costs or expensesBuyer will have the right to perform inspections of the Property at Buyer’s expense, including attorney feesthe right to obtain and review environmental reports and to make or have made such inspections of the Property and all factors relevant to its use with respect to environmental matters, sufferedincluding, paid or incurred by Seller to the extent arising out of or as a consequence of Buyer's exercise of rights under this Section 20. If Buyer is not satisfied with without limitation, the condition of the Premises soils and sub surfaces, particularly with respect to the presence or absence of hazardous materials, and to make or have made such other inspections and investigations of the Property as Buyer desires. With respect to any inspection that will require excavations, borings, drilling, removal or demolition of any portion of the Property, or any portion thereof andother invasive activities on the Property (generally, on “Invasive Testing”), Buyer shall submit to Seller a written plan describing such Invasive Testing in reasonable detail (an “Invasive Testing Plan”) for Seller’s written approval, which approval shall not be unreasonably withheld; provided however, if Seller disapproves any Invasive Testing, Buyer may terminate this Agreement effective upon giving written notice to Seller of such termination. Buyer may not proceed with any Invasive Testing unless Seller has expressly approved in writing the relevant Invasive Testing Plan, and Buyer shall conduct all Invasive Testing in compliance with the Invasive Testing Plan approved by Seller. Seller shall have the right to have a representative observe any testing activities and to request and receive split samples of any materials collected for analysis by or before for Buyer. Buyer shall restore the seventeenth Property to its original condition promptly after any Invasive Testing, original wear and tear excepted, but in no event later than five (17th5) calendar day following business days after any disturbance or damage occurs. If, by the acceptance end of the Offer by the SellerInspection Contingency Period, Buyer notifies Seller in writing that Buyer is terminating not satisfied with the Property in its then current condition, this Agreement because of such dissatisfactionwill terminate, then whereupon the Deposit will be refunded to Buyer within five (5) business days. This Agreement thereafter will be null and all other obligations void, and neither party will have any obligation to the other, except as otherwise provided herein. Unless such notice of dissatisfaction is given, the parties hereunder Inspection Contingency will cease be deemed waived and this Agreement will be null and voidbinding on Purchaser, subject only to the Additional Contingencies described in Section 4.c. If During the Buyer fails to terminate this Agreement by giving written notice of termination to Seller on or before the seventeenth (17th) calendar day following acceptance of the Offer by SellerInspection Contingency Period, Buyer will be deemed to have waived his, her, their or its rights to terminate the Agreement pursuant to this Section 20. If §56-7-1 N.M.S.A. 1978 Comp. applies to the inspections carried out pursuant to, and the indemnification obligations arising under, this Section 20, the agreement to indemnify shall not apply to liability, claims, damages, losses, costs or expenses, including attorney fees, arising out ofhave:

INSPECTION CONTINGENCY. Buyer's obligations under this Agreement will Purchaser shall have until December 17, 2014 (the “Inspection Period”) to inspect the Properties and make whatever other inquiry it deems appropriate to determine the suitability of the Properties for Purchaser’s intended use of the Properties. Such right of inspection shall include the right to review all items listed in Exhibit A to the Letter of Intent between Seller and Purchaser dated October 24, 2014 (The “LOI”). Purchaser may engage consultants or engineers of the Purchaser’s choosing to conduct studies of the Properties as the Purchaser deems necessary. The Purchaser or its agents shall have the right to enter the Properties at reasonable times to make such tests, inspections, studies, and other investigations as the Purchaser may require (the “Tests”) at the Purchaser’s expense and risk, upon providing Seller forty-eight (48) hours advance written notice of its intent to enter the Properties. Notwithstanding the foregoing, in no event shall Purchaser conduct any Phase II environmental investigation or other invasive testing on the Properties or contact or otherwise communicate in any manner with any governmental agency respecting environmental conditions at or in the vicinity of the Properties, in either case without Seller’s prior written consent, which consent may be contingent upon Buyer's satisfaction with granted or withheld in Seller’s sole and absolute discretion; provided, however that Purchaser shall have the result right, without Seller’s consent, to contact governmental agencies concerning the Property for general zoning diligence unrelated to environmental matters. Purchaser shall promptly deliver to Seller copies of such inspections (including the Tests including, without limitation, structural, insect, radon) of the Premises as Buyer, at his, her, their or its sole cost, may cause to be conducted on or before the fourteenth (14th) calendar day following the acceptance of the Offer by the Seller. Buyer also will be entitled to re-inspect the Premises, at the Buyer's sole cost, within two (2) calendar days of the Closing for the limited purpose of confirming the condition of the Premises has not changed since the completion of the inspections referred to in the preceding sentence. Buyer and Buyer's inspectors and consultants will be entitled to have reasonable access any environmental assessment prepared with respect to the Premises Properties. Notwithstanding anything herein to the contrary, Seller hereby confirms that it has granted consent to Purchaser to perform a Phase II environmental investigation in accordance with a proposal submitted by Purchaser to Seller prior to the Effective Date. The obligations of Purchaser under this Paragraph 6(a) shall survive Closing or termination of this Agreement. Purchaser shall: (i) indemnify, defend, protect, and hold harmless Seller and the Properties from time to time for the purposes of making such inspections, provided that Buyer will indemnify Seller from any and against all liability, claimslien, damagesdamage, lossesand cost (including reasonable attorneys’ fees) to the extent caused by Purchaser’s entry onto the Properties, costs except for (A) any loss, lien, liability, cost, or expenses, including attorney fees, suffered, paid or incurred by Seller expense to the extent arising out from or related to the acts of Seller; (B) any diminution in value of the Properties arising from or relating to matters discovered by Purchaser during its investigation; (C) any latent defects discovered by Purchaser; or (D) the release or spread of any hazardous materials which are discovered on or under the Properties by Purchaser except to the extent deposited, released, or spread by Purchaser’s actions (other than the mere discovery of such hazardous materials as long as Purchaser takes reasonable steps not to exacerbate the condition); (ii) promptly repair any damage to the Properties caused by Purchaser’s entry (excepted as set forth in subparagraphs (i)(A)-(D) above); and (iii) prior to entry upon the Properties, deliver to Seller a consequence certificate or other reasonable proof evidencing that Purchaser has a commercial general liability insurance policy written on an occurrence basis with combined single limits liability for personal injury and property damage of Buyer's exercise not less than One Million Dollars ($1,000,000). The foregoing indemnity, defense, and hold harmless obligations do not apply to (x) any liability, damage, or cost to the extent caused by acts or omissions of rights under Seller; (y) any diminution in value of the Properties or other loss or damage incurred by Seller arising from or relating to any matters discovered by Purchaser during its investigation of the Properties; or (z) as otherwise set forth in subparagraph (i)(A)-(D) above. Purchaser’s indemnity obligation set forth in this Section 20Paragraph 6(a) shall survive Closing or termination of this Agreement. Purchaser shall notify Seller in writing before the end of the Inspection Period whether or not Purchaser elects to proceed with the purchase of the Properties pursuant to this Agreement. If Buyer is not satisfied with the condition of the Premises or any portion thereof andPurchaser, on or before the seventeenth (17th) calendar day following the acceptance of the Offer by the Sellerin its sole discretion, Buyer notifies Seller in writing that Buyer is terminating at any time during the Inspection Period of its election not to proceed with the purchase of the Properties for any reason or for no reason, this Agreement because of such dissatisfaction, then shall be terminated and Escrow Holder shall immediately return the Deposit will to Purchaser. Purchaser’s failure to notify Seller in writing of its election not to purchase the Properties within the aforementioned time limit shall be refunded deemed an election to Buyer and all other obligations proceed with the purchase of the parties hereunder will cease Properties and this Agreement will be null and void. If the Buyer fails is referred to terminate this Agreement by giving written notice of termination to Seller on or before the seventeenth (17th) calendar day following acceptance herein as “waiver of the Offer by Seller, Buyer will be deemed to have waived his, her, their or its rights to terminate the Agreement pursuant to this Section 20. If §56-7-1 N.M.S.A. 1978 Comp. applies to the inspections carried out pursuant to, and the indemnification obligations arising under, this Section 20, the agreement to indemnify shall not apply to liability, claims, damages, losses, costs or expenses, including attorney fees, arising out ofInspection Contingency”.

INSPECTION CONTINGENCY. Buyer's obligations under this Agreement will be contingent upon Buyer's satisfaction with the result of such inspections (including without limitation, structural, insect, radon) of the Premises as Buyer, at his, her, their or its sole cost, may cause to be conducted on or before the fourteenth (14thf ( ) calendar day following the acceptance of the Offer by the Seller. Buyer also will be entitled to re-inspect the Premises, at the Buyer's sole cost, within two (2( ) calendar days of the Closing for the limited purpose of confirming the condition of the Premises has not changed since the completion of the inspections referred to in the preceding sentenceabove. Buyer and Buyer's inspectors and consultants will be entitled to have reasonable access to the Premises from time to time for the purposes of making such inspections, provided that Buyer will indemnify Seller from any and all liability, claims, damages, losses, costs or expenses, including attorney fees, fees suffered, paid or incurred by Seller to the extent arising out of or as a consequence of Buyer's exercise of rights under this Section 20section. If Buyer is not satisfied with the condition of the Premises or any portion thereof and, on or before the seventeenth (17th( ) calendar day following the acceptance of the Offer by the Seller, Buyer notifies Seller in writing that Buyer is terminating this Agreement because of such dissatisfaction, then the Deposit will be refunded to Buyer and all other obligations of the parties hereunder will cease and this Agreement will be null and void. If the Buyer fails to terminate this Agreement by giving written notice of termination to Seller on or before the seventeenth (17th( ) calendar day following acceptance of the Offer by Seller, Buyer will be deemed to have waived his, her, their or its rights to terminate the Agreement pursuant to this Section 20section. If §56-7-1 N.M.S.A. 1978 Comp. applies to the inspections carried out pursuant to, and the indemnification obligations arising under, this Section 2014, the agreement to indemnify shall not apply to liability, claims, damages, losses, costs or expenses, including attorney fees, arising out ofof (i) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications by the indemnitee, or the agents or employees of the indemnitee; or (ii) the giving of or the failure to give directions or instructions by the indemnitee, or the agents or employees of the indemnitee, where such giving or failure to give directions or instructions is the primary cause of bodily injury to persons or damage to property.