Inspection Period. 3.1 Purchaser will have from the Effective Date until the date that is ninety (90) days thereafter (the “Inspection Period”), to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property. 3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement. 3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) and (b) of the preceding sentence shall apply. 3.4 Notwithstanding anything in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CapRocq Core REIT, Inc.)
Inspection Period. 3.1 Purchaser will have from The term "FIRST INSPECTION PERIOD," as used herein, shall mean the Effective Date until period ending at 5:00 p.m. eastern standard time on March 3, 1999. The term "SECOND INSPECTION PERIOD," as used herein, shall mean the date that is ninety period ending at 5:00 p.m. eastern standard time on March 9, 1999. If Buyer reasonably objects to any matter relating to physical aspects of the Property (90) days thereafter (including, for purposes of illustration, structural or mechanical elements of the “Inspection Period”Improvements), or any so-called "MARKET" related matter Buyer may terminate this Agreement in its sole discretion on any day prior to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached heretoincluding the final day of the First Inspection Period by giving written notice of such election, which have been made available for Purchaser’s review (notice shall specify the “Property Information”) matter to which Buyer objects in reasonable detail. In addition, if Buyer reasonably objects to any matter relating to the environmental condition of the Property, Buyer may terminate this Agreement in its sole discretion on any day prior to and including the final day of the Second Inspection Period by giving written notice of such election, which notice shall specify the matter to decidewhich Buyer objects in reasonable detail. If Buyer terminates this Agreement as aforesaid, in Purchaser’s sole discretionthe Deposit and any interest earned thereon shall be returned forthwith to Buyer and, whether the Project is satisfactory. Seller except as expressly set forth herein, no party shall have an ongoing any further liability or obligation during to the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Periodothers hereunder. Except as may expressly set forth in this Section 4.2(g), in Sections 4.2(c) or 4.2(d) above, and as set forth in that certain letter dated Feb. 26, 1999 from Xxxxx X. Xxxxxxx, Xx. to Xxxxxx X. Xxxxxx (for the matters set forth therein), or as otherwise be provided hereinexpressly permitted hereunder, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, Buyer shall be paid for by Purchaser. Seller is not assigning any Property Information have no right to Purchaser or any rights with respect thereto except at the Closing as required under this terminate this Agreement, and Purchaser acknowledges it being specifically agreed that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conductBuyer has no right, at Purchaser’s sole cost and expenseany time, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice reason of termination any objection to Seller. In the event Purchaser timely exercises its Contracts, Leases, any other so-called "market"-related matters, or any matter other than matters disclosed in the title report (described in Section 4.2(d)), matters disclosed in the Survey, physical aspects of the Property and the environmental condition of the Property; (ii) after the expiration of the First Inspection Period, Buyer shall have no right to terminate this Agreement pursuant by reason of any objection other than an objection to this Section 3.3, (a) Purchaser shall receive a full return the environmental condition of the Deposit (less the Independent Consideration), Property; and (biii) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before after the expiration of the Second Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) and (b) all of the preceding sentence shall apply.
3.4 Notwithstanding anything contingencies provided for in this Section 3 to the contrary, Purchaser 4.2(g) shall not no longer be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including deathapplicable, and property damage combined. All such insurance this Agreement shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Sellercontinue in full force and effect.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Office Properties Trust)
Inspection Period. 3.1 Purchaser will have from acknowledges that Seller provided Purchaser the opportunity to conduct such due diligence and inspections of the Property as Purchaser and its officers, directors, employees and advisers deemed necessary and appropriate prior to the Effective Date until Date. Notwithstanding anything to the date that is ninety (90) days thereafter (contrary herein, any and all references to the “Inspection Period”), to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building mean and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, refer and shall be paid deemed to mean and refer to for by Purchaser. Seller is not assigning all purposes to a period commencing prior to the Effective Date and expiring immediately upon the Effective Date and that, therefore, any Property Information and all rights of Purchaser to Purchaser or any rights with respect thereto except at the Closing as required under terminate this Agreement pursuant to this AgreementArticle IV have terminated and been unconditionally waived and relinquished, and Purchaser acknowledges that some of has no such right to so terminate this Agreement pursuant to this Article IV. Notwithstanding the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to foregoing, from and after the results of or any inaccuracies contained in any itemEffective Date, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) this Agreement, Purchaser and its representatives shall INDEMNIFYbe permitted to enter upon the Property during the term of this Agreement to examine, DEFEND inspect and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (investigate the Property including, but not limited to, Seller’s reasonable attorneys’ fees all Books and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about Records located at the Property, excluding from the foregoing indemnity subject to Manager’s good faith compliance with Legal Requirements with respect to access to any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations Employee records (collectively, the “Legal RequirementsDue Diligence”); (vi) provided, however, the Purchaser shall not permit any inspections, investigations or other due diligence activities have no right to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days terminate this Agreement based on such Due Diligence after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period. Purchaser’s Due Diligence shall be subject to the terms, Purchaser will have the right conditions and limitations set forth in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration)Article IV, and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser Purchaser’s conduct shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) strict compliance with the covenants and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything agreements contained in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerArticle IV.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors Inc)
Inspection Period. 3.1 Purchaser will have from acknowledges that Seller provided Purchaser the opportunity to conduct such due diligence and inspections of the Property as Purchaser and its officers, directors, employees and advisers deemed necessary and appropriate prior to the Effective Date until the date that is ninety (90) days thereafter (Date. Any and all references to the “Inspection Period”)” in this Agreement mean and refer and shall be deemed to mean and refer to for all purposes to a period commencing prior to the Effective Date and expiring immediately upon the Effective Date and that, to perform physical inspections and other due diligence, includingtherefore, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for limiting the Purchaser’s review (termination rights expressly set forth in the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency other provisions of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, any and all rights of Purchaser to terminate this Agreement pursuant to this Article IV have terminated and been unconditionally waived and relinquished, and Purchaser acknowledges that some of has no such right to so terminate this Agreement pursuant to this Article IV. Notwithstanding the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to foregoing, from and after the results of or any inaccuracies contained in any itemEffective Date, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) this Agreement, Purchaser and its representatives shall INDEMNIFYbe permitted to enter upon the Property to examine, DEFEND inspect and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (investigate the Property including, but not limited to, Seller’s reasonable attorneys’ fees all Books and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about Records located at the Property, excluding from the foregoing indemnity subject to Manager’s good faith compliance with Legal Requirements with respect to access to any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations Employee records (collectively, the “Legal RequirementsDue Diligence”); (vi) Purchaser shall not permit any inspectionsprovided, investigations or other due diligence activities to result in any lienshowever, judgments or other encumbrances being filed against without limiting the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive termination rights expressly set forth in the Closing or earlier termination other provisions of this Agreement.
3.3 On or before , the Purchaser has no right to terminate this Agreement based on such Due Diligence after the expiration of the Inspection Period. Purchaser’s Due Diligence shall be subject to the terms, Purchaser will have the right conditions and limitations set forth in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration)Article IV, and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser Purchaser’s conduct shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) strict compliance with the covenants and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything agreements contained in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerArticle IV.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors Inc)
Inspection Period. 3.1 5.01 Purchaser will shall have sixty (60) days from the Effective Date until Date, ("Inspection Period"), to conduct engineering, feasibility and such other studies and investigations concerning the date that is ninety (90) days thereafter property being acquired as it desires (the “Inspection Investigation Period”). During the Investigation Period, to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller Purchaser shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives full access to the Property at reasonable times as deemed necessary by the inspecting party. Purchaser and/or its designated agents may enter upon the applicable property for the purpose of soil analysis, core drilling, structural examination and tests, or other studies, tests, examinations and investigations which may be deemed necessary. During the Investigation Period the parties agree to conduct, at Purchaser’s sole cost and expense, its due diligence cooperate fully with respect one another in order that each may obtain copies of all documents pertaining to the Project; provided that: (i) such access shall be coordinated with a representative of Seller andproperty being acquired, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees plats, site plans, surveys, permits, licenses, approvals, and expenses actually incurredenvironmental reports. If for any reason, or no reason, Purchaser determines during the Investigation Period (in its sole discretion) that it does not desire to proceed with the transaction (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal RequirementsTerminating Party”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in then no event more later than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Investigation Period, Purchaser will have the right in its sole Terminating Party shall notify the other party that it has elected not to proceed and absolute discretion desires to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration)Agreement, and (b) except for obligations that the parties shall be relieved of all liability under this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunderAgreement. If Purchaser fails to give Seller, provide to Seller notice that it has elected not to proceed on or before 5:00 p.m. on the expiration last day of the Inspection Investigation Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, then Purchaser shall be deemed to have elected to proceed and shall have no further right to terminate this AgreementAgreement under this Section. In the event this Agreement fails to close for any reason, to the extent Purchaser’s inspections resulted in which case, clauses (a) and (b) alterations of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contraryProperty, Purchaser shall not be allowed restore the property to cause the condition existing prior to the inspections. To the extent permitted by Florida law, Xxxxxxxxx agrees to indemnify and hold the Seller harmless against any test to be performed which involves property damage or personal injury or claim of lien against resulting from the activities permitted by this Section (including, without limitation, reasonable attorneys’ fees and expenses paid or incurred by the other party during litigation, if any). Liability under the foregoing indemnity shall survive the Closing and any intrusive sampling from termination of this Agreement.
5.02 Purchaser understands and acknowledges that it will inspect the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection will rely solely on its own investigations of the Property and during not on any information provided or to be provided by the Inspection Periodother party, except as otherwise provided herein. Purchaser acknowledges that any documents provided to it pursuant to this Section or any prior survey provided were obtained from a variety of sources and each agent, consultant the Seller has not made any independent investigation or contractor shall, at no cost verification of such information and does not make any representations as to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate the accuracy or certificates completeness of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Sellerinformation.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Inspection Period. 3.1 Purchaser will have 6.1. BASIC PROJECT INSPECTION. At all times prior to Closing, including times following the "INSPECTION PERIOD" (which Inspection Period is defined to be the period from and after the Effective Contract Date until and continuing through and including the date that is ninety thirty (9030) days thereafter after the Contract Date), Purchaser, its agents and representatives shall be entitled to conduct a "BASIC PROJECT INSPECTION," which will include the rights to: (i) enter upon the “Inspection Period”)Land and Improvements, on reasonable notice to Seller, to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement tests of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reportsProject, (ii) the truth or accuracy of such itemsmake investigations with regard to environmental and other legal requirements, documents, or reports or (iii) review the existence or non-existence of any Hazardous Materials intenant leases and other contracts affecting the Project, or, about the Property.
3.2 During the Inspection Period, Seller, and (iv) upon at least one three (13) day’s business days' prior written noticenotice to Seller affording Seller the opportunity to be present at such interview, will provide Purchaser or its designated representatives access to interview any tenant of the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence Project with respect to its current and prospective occupancy of the Project; provided that: (i) such access shall be coordinated with a representative . If Purchaser determines that the results of Seller andany inspection, at Seller’s electiontest, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFYexamination or review do not meet Purchaser's criteria, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to discretion, for the purchase, financing or operation of the Project in the manner contemplated by Purchaser, then Purchaser may terminate this Agreement by giving written notice to Seller (the "TERMINATION NOTICE"), with a copy to Escrowee, given not later than the last day of the Inspection Period (the "APPROVAL
1. Upon the timely termination to Seller. In the event Purchaser timely exercises its right to terminate of this Agreement pursuant by Purchaser in accordance with the terms of this SECTION 6.1, the Initial Xxxxxxx Money, together with all interest thereon, shall be returned to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against liability to the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Periodexcept as provided in SECTIONS 6.3, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) 17 and (b) of the preceding sentence shall apply20 below.
3.4 Notwithstanding anything in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Office Properties Trust)
Inspection Period. 3.1 Purchaser will Buyer shall have from until thirty-five (35) days after the Effective Date until (such period being herein called the date that is ninety (90) days thereafter (the “"Inspection Period”") in which to order, review and approve all inspections or studies which Buyer may elect to make and address SEC matters pursuant to Section 7.2 (in each case at Buyer's sole risk, cost and expense), to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached heretofeasibility, which have been made available for Purchaser’s review (the “Property Information”) marketing, soils, asbestos, environmental, architectural and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability engineering studies with respect to the results Property and otherwise satisfy itself with the Property pursuant to this Article 5. This Contract shall terminate upon the end of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Period unless Buyer delivers written notice (the "Notice of Acceptance") to Seller on or before 4:00 p.m. MST on the last day of the Inspection Period stating that Buyer waives its right of termination pursuant to this Article 5. Buyer may also terminate this Contract by the end of the Inspection Period by delivering written notice to Seller on or before 4:00 p.m. MST on the last day of the Inspection Period stating that Buyer terminates this Contract pursuant to this Article 5. Unless Buyer timely provides the Notice of Acceptance to Seller, upon at least one (1) day’s prior written noticein writing, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration end of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to SellerContract shall be terminated. In the event Purchaser Buyer timely exercises delivers its right Notice of Termination or is deemed to terminate have terminated this Agreement Contract, the Contract shall be terminated. Upon such termination pursuant to this Section 3.35.1, (a) Purchaser the Xxxxxxx Money shall receive a full return be returned to Buyer, subject to Buyer's compliance with Section 9.3, and, except as otherwise provided in this Contract, neither of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party parties shall have any further rights against the other hereunderliability or obligation under this Contract. If Purchaser fails Any attempt by Buyer to give Seller, on or before the expiration exercise such right of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) termination after such date and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything time as provided in this Section 3 to 5.1 shall be of no force or effect and it will be deemed that Buyer is satisfied with the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection condition of the Property (including the physical condition of the Improvements and during the Inspection Periodenvironmental condition of the Land and the Improvements), Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller as well as the other matters specified in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Sellerthis Section 5.1.
Appears in 1 contract
Samples: Contract of Sale (Cole Credit Property Trust II Inc)
Inspection Period. 3.1 Purchaser will Subject to the rights of existing tenants at the Property, Buyer shall have from a period commencing on the Effective Date until the date that is ninety (90) days thereafter hereof and ending on May 12, 2006 at 3 p.m. Eastern Standard Time (the “Inspection "Due Diligence Period”)") within which to cause one or more surveyors, attorneys, engineers, auditors, architects, and/or other experts of its choice to perform physical inspections and other due diligenceundertake the following with respect to each Property: (i) to inspect any document related to each Property, including, without limitation, to review those materials listed on Exhibit “C” attached heretoall Leases and related documents, which have been made available for Purchaser’s review (the “Property Information”) working drawings, plans and to decidespecifications, in Purchaser’s sole discretionsurveys, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided hereinappraisals, all due diligence costs including, without limitation, all costs of building and site inspections, engineeringengineer's reports, environmental and/or other reports or inspections undertaken by Purchaserreports, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreementinsurance policies, service contracts, real estate tax receipts and annual and monthly operating statements, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (aii) Seller shall have no liability to inspect, examine, survey, appraise and obtain engineering and inspection reports with respect to each Property, and otherwise to do all that, which, in the results opinion of or Buyer is necessary to determine the condition and value of each Property for the uses intended by Buyer; provided, however, that Buyer has received environmental reports from Home Properties and Buyer shall not conduct any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence additional environmental study of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which Home Properties. Buyer may be withheld in Seller’s sole discretion. Purchaser’s liabilities under terminate this Section 3.2 shall survive the Closing Agreement for any reason or earlier termination of this Agreement.
3.3 On or before the no reason by written notice to Sellers given prior to expiration of the Inspection Due Diligence Period, Purchaser will have in which event the right in its sole Xxxxxxx Money Deposit shall be returned immediately to Buyer, and absolute discretion to terminate this Agreement by giving written notice shall, thereafter, be deemed null, void and of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration)no further force or effect, and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser shall be deemed to have elected to terminate obligations under this Agreement, except for those provisions that expressly survive the termination of this Agreement. If not so terminated by Buyer then this Agreement shall continue in which case, clauses (a) full force and (b) effect according to its terms and the Xxxxxxx Money Deposit shall be nonrefundable except as otherwise expressly set forth herein. Buyer shall be responsible for payment of all of the preceding sentence costs of its due diligence activities, including, without limitation, all engineering and environmental reports and surveys, and all financial and Lease audits. Buyer shall apply.
3.4 Notwithstanding anything in this Section 3 to indemnify and hold Home Properties and the contraryrelevant Company harmless from and against any and all loss, Purchaser claims, damage and expense arising out of entry by Buyer and its agents onto any Property and any testing performed thereon. Buyer shall not be allowed to repair any damage which it may cause as a result of any test such entry and testing. Buyer shall cause its entry, inspections and testing (if any) to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller conducted in a form reasonably satisfactory manner so as to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser minimize disruption to staff and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in tenants at the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerProperties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Inspection Period. 3.1 Purchaser will have from acknowledges that Seller provided Purchaser the opportunity to conduct such due diligence and inspections of the Property as Purchaser and its officers, directors, employees and advisers deemed necessary and appropriate prior to the Effective Date until Date. Notwithstanding anything to the date that is ninety (90) days thereafter (contrary herein, any and all references to the “Inspection Period”)” in this Agreement mean and refer and shall be deemed to mean and refer to for all purposes to a period commencing prior to the Effective Date and expiring immediately upon the Effective Date and that, therefore, any and all rights of Purchaser to perform physical inspections terminate this Agreement in connection with its Due Diligence have terminated and other due diligencebeen unconditionally waived and relinquished, and Purchaser has no such right to so terminate this Agreement in connection with its Due Diligence (but without limiting Purchaser’s termination rights expressly set forth in this Agreement (including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”termination rights set forth in Section 4.7) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, Deposit shall be paid for by Purchaser. Seller is not assigning any Property Information non-refundable to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated otherwise expressly provided in this Agreement: (a) Seller shall have no liability with respect to ). Notwithstanding the results of or any inaccuracies contained in any itemforegoing, documentfrom and after the Effective Date, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) this Agreement, Purchaser and its representatives shall INDEMNIFYbe permitted to enter upon the Property during the term of this Agreement to examine, DEFEND inspect and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (investigate the Property including, but not limited to, Seller’s reasonable attorneys’ fees all Books and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about Records located at the Property, excluding from the foregoing indemnity subject to Manager’s good faith compliance with Legal Requirements with respect to access to any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations Employee records (collectively, the “Legal RequirementsDue Diligence”); (vi) provided, however, the Purchaser shall not permit any inspections, investigations or other due diligence activities have no right to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days terminate this Agreement based on such Due Diligence after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period. Purchaser’s Due Diligence shall be subject to the terms, Purchaser will have the right conditions and limitations set forth in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration)Article IV, and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser Purchaser’s conduct shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) strict compliance with the covenants and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything agreements contained in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerArticle IV.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors 2 Inc)
Inspection Period. 3.1 Purchaser will shall have from the Effective Date until 5:00 p.m. Pacific Daylight Time on the date that is ninety twenty (9020) days thereafter after the Effective Date (the “Inspection Period”)) to inspect the Property and the Due Diligence Documents, and to perform physical inspections and such other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller andProperty as Purchaser reasonably deems necessary, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms rights of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any tenants in possession of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) . Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Sellermay, on or before the expiration of the Inspection PeriodPeriod (the “Out Date”), written in its sole discretion, advise Seller and Escrow Holder, in writing, of its election to proceed or not to proceed with the purchase of the Property. If Purchaser, in its sole discretion, decides that it will not proceed with the purchase of the Property, Purchaser shall on or before the Out Date give notice to Seller and Escrow Holder that it is terminating this Agreement. If Purchaser has waived fails to notify Seller and Escrow Holder of its right decision on or before the Out Date, Purchaser shall be deemed to have elected not to terminate this Agreement pursuant to this Section 3.33.5. Upon any termination, in the absence of a default by Purchaser, the Deposit shall be refunded to Purchaser, all documents, including all Due Diligence Documents, received from Seller or Seller’s agents, shall be returned by Purchaser to Seller, Purchaser shall be deemed to have elected to terminate this Agreementshall, in which case, clauses (a) and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without at Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shallrequest, at no cost to Seller, furnish without representation or warranty, deliver to Seller true and correct copies of all third party reports obtained by Purchaser with respect to the Property, and, subject to Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12 hereof, neither party shall have any further rights or obligations hereunder. In the event Purchaser notifies or is deemed to have notified Seller of its election to proceed with the purchase, then this Agreement will not be terminated, the Deposit shall become non-refundable (subject to the other terms and conditions of this Agreement) and Seller and Purchaser shall proceed to Closing in a form reasonably satisfactory to accordance with the terms and conditions hereof and the Inspection Period termination rights shall be deemed waived by Purchaser. Purchaser shall not undertake any soil borings, ground water testing or other “Phase II” investigative procedures without first having obtained the prior written consent of Seller, a certificate or certificates not to be unreasonably withheld. In connection with Purchaser’s inspection of insurancethe Property, Purchaser agrees that:
(a) All inspection fees, engineering fees, or other satisfactory evidence indicating that expenses of any kind incurred by Purchaser relating to the inspection of the Property will be at Purchaser’s sole cost and expense;
(b) Purchaser will give Seller reasonable advance notice of the dates of all inspections and will schedule all tests and inspections during normal business hours whenever feasible unless otherwise requested by Seller;
(c) Seller will have the right to have one or more representatives of Seller accompany Purchaser and each agentPurchaser’s representatives, consultant agents or contractor have designees while they are on the Property;
(d) Any entry by Purchaser, its representatives, agents or designees will not unreasonably interfere with Seller’s use of the Property or with the operations of any tenant;
(e) Purchaser will restore any damage caused to the Property by Purchaser’s entry on the Property for inspection purposes at Purchaser’s sole cost and expense if this transaction does not close; and
(f) In making any inspection hereunder, Purchaser will treat and will cause any representative of Purchaser to treat all information obtained commercial general liability insurance by Purchaser pursuant to the terms of this Agreement as strictly confidential in accordance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerSection 11.12 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Realty Income Fund I L P)
Inspection Period. 3.1 Purchaser will shall have from the Effective Date until 5:00 p.m. Eastern Standard Time on the date that is ninety forty-five (9045) days thereafter after the Effective Date (the “Inspection Period”)) to inspect the Property and the Due Diligence Documents, and to perform physical inspections and such other due diligence, includingincluding a phase I environmental investigation, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any itemProperty as Purchaser reasonably deems necessary, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms rights of such Tenant’s Lease; (iii) tenants in possession of the Property. Purchaser shall INDEMNIFYagrees to immediately commence its inspection efforts and will pursue same diligently, DEFEND and HOLD will advise Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) findings as soon as practicable. Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Sellermay, on or before the expiration of the Inspection PeriodPeriod (the “Out Date”), written in its sole discretion, advise Seller and Escrow Holder, in writing, of its election to proceed with the purchase of the Property. If Purchaser, in its sole discretion, decides that it will not proceed with the purchase of the Property, Purchaser shall on or before the Out Date give notice to Seller and Escrow Holder that it is terminating this Agreement. If Purchaser has waived fails to notify Seller and Escrow Holder of its right to terminate this Agreement pursuant to this Section 3.3decision on or before the Out Date, Purchaser shall be deemed to have elected to terminate notified Seller and Escrow Holder on the Out Date that Purchaser is terminating this Agreement. Upon any such termination, in which casethe absence of a default by Purchaser beyond applicable notice and cure periods, clauses (a) and (b) of the preceding sentence Deposit shall apply.
3.4 Notwithstanding anything in this Section 3 be refunded to the contraryPurchaser, all documents, including all Due Diligence Documents, received from Seller or Seller’s agents, shall be returned by Purchaser to Seller, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without shall, at Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shallrequest, at no cost to Seller, furnish without representation or warranty, deliver to Seller true and correct copies of all third party reports obtained by Purchaser with respect to the Property, and, subject to Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12 hereof, neither party shall have any further rights or obligations hereunder. In the event this Agreement is not so terminated, the Deposit shall become non-refundable (subject to the other terms and conditions of this Agreement) and Seller and Purchaser shall proceed to Closing in a form reasonably satisfactory to accordance with the terms and conditions hereof and the Inspection Period termination rights shall be deemed waived by Purchaser. Purchaser shall not undertake any soil borings, ground water testing or other “Phase II” investigative procedures without first having obtained the prior written consent of Seller, a certificate which shall not be unreasonably withheld, delayed or certificates conditioned. In connection with Purchaser’s inspection of insurancethe Property, Purchaser agrees that:
(a) All inspection fees, engineering fees, or other satisfactory evidence indicating that expenses of any kind incurred by Purchaser relating to the inspection of the Property will be at Purchaser’s sole cost and expense;
(b) Purchaser will give Seller reasonable advance notice of the dates of all inspections and will schedule all tests and inspections during normal business hours whenever feasible unless otherwise requested by Seller;
(c) Seller will have the right to have one or more representatives of Seller accompany Purchaser and each agentPurchaser’s representatives, consultant agents or contractor have designees while they are on the Property;
(d) Any entry by Purchaser, its representatives, agents or designees will not unreasonably interfere with Seller’s use of the Property or with the operations of any tenant;
(e) Purchaser will restore any damage caused to the Property by Purchaser’s entry on the Property for inspection purposes at Purchaser’s sole cost and expense if this transaction does not close; and
(f) In making any inspection hereunder, Purchaser will treat and will cause any representative of Purchaser to treat all information obtained commercial general liability insurance by Purchaser pursuant to the terms of this Agreement as strictly confidential in accordance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerSection 11.12 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Realty Income Fund I L P)
Inspection Period. 3.1 Purchaser will have from the Effective Date until the date that is ninety (90) days thereafter (the “Inspection Period”), to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Initial Inspection Period and the Extended Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its Buyer may conduct a due diligence with respect review of the Projects, including obtaining such engineering and environmental reports as it may deem necessary and reviewing the documents to the Project; be provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or pursuant to Section 6.1. If for any of its employeesreason during the Initial Inspection Period Buyer determines that it is not advisable to purchase the Projects, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating then Buyer may by notice to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition in writing prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Initial Inspection Period, Purchaser will have the right in its sole and absolute discretion to Period terminate this Agreement in its entirety (but not on a Project by giving written Project basis), in which case the Exxxxxx Money shall be returned to Buyer. Failure of Buyer to provide such notice by such date shall constitute a waiver by Buyer of termination to Seller. In the event Purchaser timely exercises its any right to terminate this Agreement pursuant to the terms of this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration6.4(a), and thereafter $1,000,000 of the Exxxxxx Money shall become completely earned and non-refundable unless this Agreement is terminated by Buyer in accordance with the terms of Section 6.3(b), Section 6.4(b) or Section 11.1.
(b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against If after the other hereunder. If Purchaser fails to give Seller, expiration of the Initial Inspection Period but on or before the expiration of the Extended Inspection PeriodPeriod Buyer determines that it is not advisable to purchase the Projects (other than for reasons based on Buyer’s financial due diligence), written then Buyer may by notice that Purchaser has waived to Seller in writing prior to the expiration of the Extended Inspection Period terminate this Agreement in its entirety (but not on a Project by Project basis), in which case the Exxxxxx Money shall be returned to Buyer. Any such termination notice shall describe the applicable objectionable condition in reasonable detail. Failure of Buyer to provide such notice by such date shall constitute a waiver by Buyer of any right to terminate this Agreement pursuant to the terms of this Section 3.36.4(b), Purchaser shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) and (b) thereafter the remaining $1,000,000 of the preceding sentence Exxxxxx Money shall applyalso become completely earned and non-refundable unless this Agreement is terminated by Buyer in accordance with the terms of Section 6.3(b) or Section 11.1.
3.4 Notwithstanding anything in this Section 3 (c) Any information regarding the Projects provided to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests Buyer by Seller and any other environmental tests and assessments. Prior to entry for inspection information acquired by Buyer in connection with this Agreement or Buyer’s investigation of the Property Projects shall constitute Confidential Information, as such term is defined in that certain Confidentiality Agreement executed by Buyer and during the Inspection Perioddated March 1, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined2004. All such insurance Confidential Information and Buyer’s use thereof shall name be governed by and subject to the terms of such Confidentiality Agreement. If this Agreement is terminated for any reason, Buyer shall upon Seller’s request deliver to Seller as an additional insuredall information, data, studies and tests regarding the Projects which Seller previously provided to Buyer. In additionBuyer shall also upon Seller’s request deliver to Seller any environmental, physical and other third party reports relating to the Projects and obtained by Buyer from parties other than Seller, provided Seller reimburses Buyer for Buyer’s actual costs related thereto. Buyer authorizes Seller to re-use and disclose any and all such certificate(smaterials, and Buyer shall execute such further written authorizations for such future use and disclosure as Seller may reasonably request.
(d) or other evidence Buyer shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ give Seller reasonable prior written notice (at least 24 hours) of its intention to conduct any inspections of the Projects, which notices shall specify the date and time that Buyer or its representatives will arrive at the applicable Project, and Seller shall have the right to have representatives of Seller present at any inspections. Buyer shall be liable for all damage or injury to any person or property resulting from any such inspection, whether occasioned by the acts of Buyer or any of its employees, agents, representatives or contractors, and Buyer shall indemnify, defend and hold harmless Seller from any liability resulting therefrom. This indemnification by Buyer shall survive the Closing or any termination of this Agreement. Buyer agrees to indemnify and hold harmless the Seller from any claim, damage, loss, or liability to which Seller is at any time subjected as a result of Seller’s compliance with the prior sentence.
(e) Certain third party environmental and/or engineering reports have been generated or work has been performed to generate such reports (collectively, the “Existing Due Diligence”) in connection with a prior proposed sale of the Projects pursuant to a prior sale agreement between Seller and Storeinvest I, LLC (the “Prior Sale Agreement”). Seller hereby acknowledges and agrees that, notwithstanding any confidentiality requirements in the Prior Sale Agreement or in any separate confidentiality agreement related to the Prior Sale Agreement, Buyer shall be permitted to obtain and (subject to the confidentiality restrictions herein) make use of the Existing Due Diligence.
Appears in 1 contract
Inspection Period. 3.1 Purchaser will shall have from the Effective Date until the date that is ninety (90) days thereafter 5:00 p.m. Pacific Daylight Time on December 15, 2006 (the “Inspection Period”), to perform physical inspections inspect the Property and other due diligencethe Due Diligence Documents, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or perform such other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller andProperty as Purchaser reasonably deems necessary, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms rights of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any tenants in possession of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) . Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Sellermay, on or before the expiration of the Inspection PeriodPeriod (the “Out Date”), written in its sole discretion, advise Seller and Escrow Holder, in writing, of its election to proceed or not to proceed with the purchase of the Property. If Purchaser, in its sole discretion, decides that it will not proceed with the purchase of the Property, Purchaser shall on or before the Out Date give notice to Seller and Escrow Holder that it is terminating this Agreement. If Purchaser has waived fails to notify Seller and Escrow Holder of its right decision on or before the Out Date, Purchaser shall be deemed to have elected not to terminate this Agreement pursuant to this Section 3.33.5. Upon any termination, in the absence of a default by Purchaser, the Deposit shall be refunded to Purchaser, all documents, including all Due Diligence Documents, received from Seller or Seller’s agents, shall be returned by Purchaser to Seller, Purchaser shall be deemed to have elected to terminate this Agreementshall, in which case, clauses (a) and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without at Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shallrequest, at no cost to Seller, furnish without representation or warranty, deliver to Seller true and correct copies of all third party reports obtained by Purchaser with respect to the Property, and, subject to Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12 hereof, neither party shall have any further rights or obligations hereunder. In the event Purchaser notifies Seller of its election to proceed with the purchase, then this Agreement will not be terminated, the Deposit shall become non-refundable (subject to the other terms and conditions of this Agreement) and Seller and Purchaser shall proceed to Closing in a form reasonably satisfactory to accordance with the terms and conditions hereof and the Inspection Period termination rights shall be deemed waived by Purchaser. Purchaser shall not undertake any soil borings, ground water testing or other “Phase II” investigative procedures without first having obtained the prior written consent of Seller. In connection with Purchaser’s inspection of the Property, a certificate or certificates of insurancePurchaser agrees that:
(a) All inspection fees, engineering fees, or other satisfactory evidence indicating that expenses of any kind incurred by Purchaser relating to the inspection of the Property will be at Purchaser’s sole cost and expense;
(b) Purchaser will give Seller reasonable advance notice of the dates of all inspections and will schedule all tests and inspections during normal business hours whenever feasible unless otherwise requested by Seller;
(c) Seller will have the right to have one or more representatives of Seller accompany Purchaser and each agentPurchaser’s representatives, consultant agents or contractor have designees while they are on the Property;
(d) Any entry by Purchaser, its representatives, agents or designees will not unreasonably interfere with Seller’s use of the Property or with the operations of any tenant;
(e) Purchaser will restore any damage caused to the Property by Purchaser’s entry on the Property for inspection purposes at Purchaser’s sole cost and expense if this transaction does not close; and
(f) In making any inspection hereunder, Purchaser will treat and will cause any representative of Purchaser to treat all information obtained commercial general liability insurance by Purchaser pursuant to the terms of this Agreement as strictly confidential in accordance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerSection 11.12 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Realty Income Fund I L P)
Inspection Period. 3.1 Purchaser will The Operating Partnership shall have a period of thirty (30) days from the Effective Date until and after the date that is ninety (90) days thereafter of this Agreement (the “Inspection Period”)"DUE DILIGENCE PERIOD") within which to cause one or more surveyors, attorneys, engineers, auditors, architects, and/or other experts of its choice (i) to perform physical inspections and other due diligenceinspect any document related to any Property, including, without limitation, all Leases and related documents, working drawings, plans and specifications, surveys, appraisals, engineer's reports, environmental reports, insurance policies, service contracts, real estate tax receipts and annual and monthly operating statements, and (ii) to review those materials listed on Exhibit “C” attached heretoinspect, examine, survey, appraise and obtain engineering inspection and environmental reports with respect to any Property, or all of the Properties, and otherwise to do all that, which, in the opinion of HME, is necessary to determine the condition and value of the Properties for the uses intended by the Operating Partnership, provided, however, that the Operating Partnership shall not conduct any environmental study of any Property beyond a Phase 1 level without the consent of the Affiliated Partnerships, which have been made available for Purchaser’s review consent shall not be unreasonably withheld. The Operating Partnership may declare the Due Diligence Period ended at any earlier time. The Operating Partnership must be satisfied in all respects (in the “Property Information”sole and absolute discretion of the Operating Partnership) with the results of all reviews, inspections and to decideinvestigations conducted by, or under, the Operating Partnership during the Due Diligence Period. If the Operating Partnership shall not be so satisfied, the Operating Partnership may, within three (3) days next following the expiration of the Due Diligence Period, terminate this Agreement, in Purchaser’s sole discretion, whether which event the Project is satisfactory. Seller Operating Partnership shall have an ongoing no obligation during or liability under this Agreement, or with regard to the pendency Affiliated Partnerships or the Properties, and the Operating Partnership shall be entitled to the immediate return of the Earnest Money Deposix, xxx this Agreement shall, thereafter, be null, void and of no further force or effect. If not so terminated by the Operating Partnership, this Agreement shall continue in full force and effect according to provide Purchaser any additional Property Information created or modified in any respect after the commencement its terms. The Operating Partnership shall be responsible for payment of all of the Inspection Period. Except as may otherwise be provided herein, all costs of its due diligence costs activities, including, without limitation, all costs of building engineering and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreementreports, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; all financial and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the PropertyLease audits.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Seller.
Appears in 1 contract
Samples: Agreement for Contribution of Real Estate and Related Property (Acc Corp)
Inspection Period. 3.1 A. Purchaser will shall have from ninety days after the Effective Date until the date that is ninety (90) days thereafter (the “"Inspection Period”"), to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decidedetermine, in Purchaser’s 's sole and absolute discretion, whether that the Project Property is satisfactorysuitable and satisfactory for Purchaser's Intended Use. Seller Purchaser shall have an ongoing obligation the unconditional and absolute right to terminate this Agreement for any reason whatsoever during the pendency of this Agreement Inspection Period. In order to terminate the Agreement, Purchaser must provide Purchaser any additional Property Information created or modified in any respect after the commencement Seller with written notice so stating no later than the expiration of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information If the Purchaser elects to Purchaser or any rights with respect thereto except at terminate the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During Agreement during the Inspection Period, Sellerthen Escrow Agent shall return the Xxxxxxx Money Deposit to Purchaser, upon at least one (1) day’s prior written noticeand thereafter the parties shall have no further duties, will provide Purchaser obligations or its designated representatives access responsibilities hereunder, except for those specified herein to survive termination of this Agreement.
B. From the Property at reasonable times to conductEffective Date through Closing, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFYhave the right of going upon the Real Property with its agents and engineers as needed to inspect, DEFEND examine and HOLD Seller HARMLESS from otherwise undertake those actions which Purchaser, in its discretion and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice deems necessary or desirable to determine the suitability of the filing or recordingProperty for Purchaser's Intended Uses; including without limitation, discharge the right to perform soil tests, borings, percolation tests, compaction tests, environmental tests, surveys and tests to obtain any other information relating to the surface, subsurface and topographic conditions of record any such liens or encumbrances that are so filed or recorded; and (vii) the Property. Purchaser shall not permit promptly restore any borings, drillings or samplings physical damage caused to be done on or at the Property without by the prior written consent aforesaid inspections, tests and other activities, and Purchaser shall indemnify and hold Seller harmless from and against any suits, claims, damages, costs, expenses and liabilities asserted against or incurred by Seller as a result of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities the exercise by Purchaser of its rights under this Section 3.2 5.B. The foregoing repair, indemnity and defense obligations do not apply to (a) any loss, liability cost or expense to the extent arising from or related to the acts or omissions of Seller, or its agents or consultants, (b) any diminution in value in the Property arising from or relating to matters discovered by Purchaser during its investigation of the Property, (c) any latent defects in the Property discovered by Purchaser, or (d) the release or spread of any Hazardous Substances (hereinafter defined) which are discovered (but not deposited) on or under the Property by Purchaser. The provisions of this Section 5.B shall survive the Closing or earlier termination of this AgreementAgreement until the later of: (i) expiration of all applicable statutes of limitations; (ii) and the final resolution of any claims, litigation and appeals that may have been made or filed.
3.3 On C. Seller agrees to deliver or before otherwise make available to Purchaser, within five (5) days after the expiration Effective Date, what Seller believes to the best of Seller’s knowledge to be copies in Seller’s possession, if any, of environmental reports, permits, applications, remedial action plans, contamination assessment reports, notices and orders and determinations relating to any contamination or assessment or cleanup or monitoring of the Inspection PeriodReal Property, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3subdivision plans, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration)development plans, and (b) except for obligations that this Agreement expressly states survive terminationtechnical data, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Sellerstudies, on or before the expiration of the Inspection Periodsite plans, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3utility capacity information, Purchaser shall be deemed to have elected to terminate this Agreementsoils reports, in which casesurveys, clauses (a) and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contraryhydrological reports, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheldzoning confirmations, conditioned or delayed)concurrency information, which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior documentation pertaining to entry for inspection the Property which will facilitate Purchaser’s investigation of the Property and during the Inspection Period. However, Purchaser and each agent, consultant unintentional failure to deliver any or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates all of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby foregoing shall not be modified constitute a default or cancelled without at least ten (10) days’ prior written notice to Sellerbreach of this Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Inspection Period. 3.1 Purchaser will (a) Buyer and Buyer’s representatives shall have from forty-five (45) days after the Effective Date until the date that is ninety (90) days thereafter (the “Inspection Period”)) during which Buyer, to perform physical inspections Buyer’s agents, contractors, employees and representatives, shall have the right and opportunity to:
(i) Confirm that electrical, telephone, potable water, gas, sanitary and storm sewer, telephone and other due diligenceutility services without limitation are available to the Property, includingand that such utility services shall be adequate for Buyer’s planned use and operation of the Property after Closing;
(ii) Confirm that the Property is or after Closing shall be properly zoned and classified for Buyer’s planned development and operation of the Property and that any and all permits, without limitationlicenses, contracts, approvals and easements which Buyer reasonably determines are necessary for Buyer’s planned development and operation of the Property after Closing are available to review those materials listed on Exhibit “C” attached heretoBuyer;
(iii) Conduct such tests, which have been made available for Purchaseranalyses and examinations of the economic feasibility of the Buyer’s review planned development and operation of the Property, as Buyer may desire;
(the “Property Information”iv) and to decideDetermine whether, in PurchaserBuyer’s sole discretion, whether the Project Property is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and suitable for Buyer’s intended use thereof; and
(v) Conduct a Phase I environmental site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some assessment of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller and the Improvements, provided that such assessment shall have no liability with respect to the results of or not include any inaccuracies contained in any iteminvasive monitoring, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, including but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against to well installations or actually incurred by Seller soil or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property core sampling without the prior written consent of Seller Seller, which may be withheld in Seller’s sole discretion. PurchaserProvided, however, that: (A) Buyer shall promptly repair any damage to the Property caused by the foregoing; (B) Buyer shall pay all costs and expenses incurred in connection with the foregoing; (C) Buyer waives any and all claims against Seller, its employees, representatives, agents, and contractors, for injury to person or property arising from the presence of Buyer or anyone on Buyer’s liabilities behalf, on the Land for any purpose under this Section 3.2 5, except to the extent arising out of the negligence of any Seller; (D) Buyer shall indemnify and save Seller harmless of and from all losses, costs, injuries, damages and liability of any kind arising out of or in connection with Buyer’s activities on the Property, including the acts and omissions of Buyer’s agents, employees, architects, engineers and other personnel; and (E) prior to Buyer performing inspections of the Property, Buyer shall ensure that Buyer and any contractor that tests or inspects the Property shall maintain, public liability and property damage insurance insuring the Buyer parties and Seller against all liability arising out of any entry or inspections of the Property pursuant to the provisions hereof, with each insurance policy being issued in the amount of at least Two Million Dollars ($2,000,000.00) combined single limit for injury to or death of one or more persons in an occurrence, and for damage to tangible property (including loss of use) in an occurrence, and which shall insure the contractual liability of Buyer to provide the indemnities herein and name Seller as additional insured parties. Buyer shall provide Seller with evidence of such insurance coverage prior to any entry or inspection of the Property by Buyer or any of its contractors. The foregoing indemnity obligations shall survive the Closing or earlier termination of this AgreementAgreement for a period of six (6) months from the (i) termination of this Agreement or (ii) the Closing Date, as applicable.
3.3 On (b) Seller agrees that it will cooperate with Buyer in such inspections (i) by giving Buyer reasonable access to the Property, and (ii) by assisting Buyer in obtaining relevant documents in the possession or before control of others, provided that all out-of-pocket costs and expenses in connection with the expiration foregoing are to be paid by Buyer, provided that Buyer shall provide no less than forty-eight (48) hours’ notice to Seller (electronic mail or telephone being acceptable forms of notice, solely for subsection) prior to conducting any tenant interviews, for which Seller may have a representative present.
(c) Seller hereby authorizes Buyer to contact all state and municipal governmental authorities and agencies having jurisdiction of the Property for the purpose of confirming such information as Buyer may deem relevant concerning the Property. Seller will further cooperate with Buyer by authorizing all government agencies having jurisdiction over the Property or any part thereof, including without limitation, the building and zoning department authorities, state fire marshal, elevator, plumbing and electrical standards inspectors, code enforcement board, the water management district, and the state Department of Environmental Regulation, to issue letters for the benefit of Buyer attesting to the presence or absence of violations of applicable codes, laws and ordinances at or concerning the Property and to make such reasonable inspections as may be necessary for such authorities to issue said letters.
(d) If, at any time during the Inspection Period, Purchaser will have the right Buyer is not satisfied, in its Buyer’s sole and absolute discretion discretion, with the result of Buyer’s inspections, examinations, analyses, and determinations, Buyer may, at Buyer’s sole option for any reason whatsoever, elect to terminate this Agreement by giving delivering written notice of termination to Seller, whereupon this Agreement shall be null and void and all rights, liabilities, and obligations of the parties shall terminate. In the event Purchaser timely exercises its right If Buyer elects to terminate cancel this Agreement pursuant to this Section 3.3section, (a) Purchaser shall receive a full return Buyer must deliver to Seller or Seller’s agent written notice of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, such cancellation on or before prior to 5 p.m. EST on the expiration final day of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser Period or Buyer shall be deemed to have elected to terminate this Agreementproceed to Closing with no further contingencies except as otherwise expressly set forth herein. In the event of any such termination, in which caseBuyer shall deliver to Seller copies of any third party due diligence, clauses (a) and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contrarytesting, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing inspection reports of any nature whatsoever without Seller’s express written consent (not obtained by Buyer with regard to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cornerstone Core Properties REIT, Inc.)
Inspection Period. 3.1 Purchaser will have from acknowledges that Seller provided Purchaser the opportunity to conduct such due diligence and inspections of the Property as Purchaser and its officers, directors, employees and advisers deemed necessary and appropriate prior to the Effective Date until Date. Notwithstanding anything to the date that is ninety (90) days thereafter (contrary herein, any and all references to the “Inspection Period”)” in this Agreement mean and refer and shall be deemed to mean and refer to for all purposes to a period commencing prior to the Effective Date and expiring immediately upon the Effective Date and that, therefore, any and all rights of Purchaser to perform physical inspections terminate this Agreement in connection with its Due Diligence have terminated and other due diligencebeen unconditionally waived and relinquished, and Purchaser has no such right to so terminate this Agreement in connection with its Due Diligence (but without limiting Purchaser’s termination rights expressly set forth in this Agreement (including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”termination rights set forth in Section 4.6) and the Deposit shall be non-refundable to decidePurchaser except as otherwise expressly provided in this Agreement). Notwithstanding the foregoing, in Purchaser’s sole discretionfrom and after the Effective Date, whether subject to terms of this Agreement, Purchaser and its representatives shall be permitted to enter upon the Project is satisfactory. Seller shall have an ongoing obligation Property during the pendency term of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided hereinexamine, all due diligence costs including, without limitation, all costs of building inspect and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of investigate the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees all Books and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about Records located at the Property, excluding from the foregoing indemnity subject to Manager’s good faith compliance with Legal Requirements with respect to access to any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations Employee records (collectively, the “Legal RequirementsDue Diligence”); (vi) provided, however, the Purchaser shall not permit any inspections, investigations or other due diligence activities have no right to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days terminate this Agreement based on such Due Diligence after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period. Purchaser’s Due Diligence shall be subject to the terms, Purchaser will have the right conditions and limitations set forth in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration)ARTICLE IV, and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser Purchaser’s conduct shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) strict compliance with the covenants and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything agreements contained in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property and during the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerARTICLE IV.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors 2 Inc)
Inspection Period. 3.1 (a) Purchaser will shall have from until the expiration of sixty (60) days after the Effective Date until the date that is ninety (90) days thereafter (hereinafter referred to as the “Inspection Period”) to conduct examinations and inspections of the Property pursuant to this Section 6.1.
(b) During the Inspection Period, Purchaser, or Purchaser’s authorized agents and representatives, shall be entitled (and permitted) to enter upon the Property for the purpose of inspecting, examining and making tests upon, in and under the Property and/or otherwise conducting an evaluation of the Property. Such tests, inspections and evaluations shall include, but not necessarily be limited to, the right to conduct invasive tests, soil borings, regulatory evaluations, effecting permit applications and master planning activities. Seller shall undertake all cooperative efforts or actions as Purchaser may reasonably request in connection with, and in order to facilitate, Purchaser’s inspection and evaluation of the Property. Purchaser’s right to inspect, evaluate and conduct tests on the Property, as described in this Section 6.1(b), to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for shall continue after the Inspection Period until the Closing (provided that Purchaser has not terminated this Contract).
(c) If Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether is dissatisfied with the Project is satisfactory. results of Purchaser’s inspection of the Property, Purchaser may, by written notice delivered to Seller shall have an ongoing obligation during prior to the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement expiration of the Inspection Period, terminate this Contract. Except as may otherwise be provided hereinUpon such event, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, the Title Company shall be paid for by Purchaser. Seller is not assigning any Property Information immediately return the Xxxxxxx Money Deposit to Purchaser or any rights with respect thereto except at upon demand (without the Closing as required under this this Agreementnecessity of the consent of Seller), and neither Seller nor Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared further obligations hereunder. If Purchaser does not terminate this Contract by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness delivery of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition notice prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will shall be conclusively deemed to have accepted the right Property in its sole present condition.
(d) Purchaser agrees to indemnify and absolute discretion to terminate this Agreement hold Seller harmless from all costs and expenses actually paid by giving written notice Seller (supported by verified evidence of termination to same) which arise from damages and claims asserted by third parties (other than Seller. , its agents, affiliates, employees, partners, officers, and/or directors) in connection with Purchaser’s inspection of the Property.
(e) In the event Purchaser timely exercises its right fails to terminate consummate the Closing, other than for Seller’s breach of this Agreement pursuant Contract, Purchaser agrees to this Section 3.3reimburse Seller for all reasonable and necessary out-of-pocket expenses, actually paid by Seller (a) Purchaser shall receive a full return supported by verified evidence of the Deposit (less the Independent Considerationsame), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails relating to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 damage to the contrary, Property caused by Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for in connection with its inspection of the Property and during shall provide copies of all reports received with respect to the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerProperty.
Appears in 1 contract
Samples: Specific Performance Real Estate Sales Contract (Jacobs Entertainment Inc)
Inspection Period. 3.1 5.01 Purchaser will shall have sixty (60) days from the Effective Date until Date, ("Inspection Period"), to conduct engineering, feasibility and such other studies and investigations concerning the date that is ninety (90) days thereafter property being acquired as it desires (the “Inspection Investigation Period”). During the Investigation Period, to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller Purchaser shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives full access to the Property at reasonable times as deemed necessary by the inspecting party. Purchaser and/or its designated agents may enter upon the applicable property for the purpose of soil analysis, core drilling, structural examination and tests, or other studies, tests, examinations and investigations which may be deemed necessary. During the Investigation Period the parties agree to conduct, at Purchaser’s sole cost and expense, its due diligence cooperate fully with respect one another in order that each may obtain copies of all documents pertaining to the Project; provided that: (i) such access shall be coordinated with a representative of Seller andproperty being acquired, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees plats, site plans, surveys, permits, licenses, approvals, and expenses actually incurredenvironmental reports. If for any reason, or no reason, Purchaser determines during the Investigation Period (in its sole discretion) that it does not desire to proceed with the transaction (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal RequirementsTerminating Party”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in then no event more later than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Investigation Period, Purchaser will have the right in its sole Terminating Party shall notify the other party that it has elected not to proceed and absolute discretion desires to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration)Agreement, and (b) except for obligations that the parties shall be relieved of all liability under this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunderAgreement. If Purchaser fails to give Seller, provide to Seller notice that it has elected not to proceed on or before 5:00 p.m. on the expiration last day of the Inspection Investigation Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, then Purchaser shall be deemed to have elected to proceed and shall have no further right to terminate this AgreementAgreement under this Section. In the event this Agreement fails to close for any reason, to the extent Purchaser’s inspections resulted in which case, clauses (a) and (b) alterations of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contraryProperty, Purchaser shall not be allowed restore the property to cause the condition existing prior to the inspections. To the extent permitted by Florida law, Purchaser agrees to indemnify and hold the Seller harmless against any test to be performed which involves property damage or personal injury or claim of lien against resulting from the activities permitted by this Section (including, without limitation, reasonable attorneys’ fees and expenses paid or incurred by the other party during litigation, if any). Liability under the foregoing indemnity shall survive the Closing and any intrusive sampling from termination of this Agreement.
5.02 Purchaser understands and acknowledges that it will inspect the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection will rely solely on its own investigations of the Property and during not on any information provided or to be provided by the Inspection Periodother party, except as otherwise provided herein. Purchaser acknowledges that any documents provided to it pursuant to this Section or any prior survey provided were obtained from a variety of sources and each agent, consultant the Seller has not made any independent investigation or contractor shall, at no cost verification of such information and does not make any representations as to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate the accuracy or certificates completeness of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Sellerinformation.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Inspection Period. 3.1 Purchaser will have from the Effective Date until the date that is ninety (90) days thereafter (the “Inspection Period”), to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller The Partnership shall have no liability with respect until 5:00 p.m., Atlanta, Georgia time, on the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against inspect the Property and shallreview the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property and said assumption documents are not suitable for its purposes, at in its sole cost and expenseabsolute discretion, as promptly as possible but and notifies Contributor in no event more than fifteen (15) days after Purchaser receives actual notice writing of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings decision prior to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement shall automatically terminate and the Xxxxxxx Money shall be returned to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to the expiration of the Inspection Period shall be deemed a waiver by giving written notice Partnership of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration4(a), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against continue in full force and effect. From the other hereunder. If Purchaser fails to give Seller, on or before Effective Date through the expiration of the Inspection Period, written notice that Purchaser has waived Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to terminate this Agreement pursuant enter upon the Property at reasonable times to this Section 3.3inspect, Purchaser shall be deemed to have elected to terminate this Agreementexamine, survey, obtain engineering inspections, appraise, and otherwise do that which, in which casethe opinion of Partnership, clauses (a) is reasonably necessary to determine the boundaries, acreage and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection condition of the Property and during to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Purchaser Partnership shall have the right to examine all of Contributor's books, files and each records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurancePartnership and not the result of Contributor's, or other satisfactory evidence indicating that Purchaser and each agentits property manager's, consultant asset manager's, representatives', or contractor have obtained commercial general liability insurance with limitsagents, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregatewillful misconduct or negligence; provided, for bodily injuryhowever, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby Partnership shall not be modified liable for any consequential or cancelled incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without at least ten limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (10v) days’ prior licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to SellerPartnership.
Appears in 1 contract
Samples: Agreement to Contribute (Vinings Investment Properties Trust/Ga)
Inspection Period. 3.1 Purchaser During the period (the "Inspection Period") commencing on the Effective Date and expiring at 4:00 p.m. on the date which will have be thirty (30) days from the Effective Date until Date, the date that is ninety (90) days thereafter (the “Inspection Period”)Purchaser and its engineers, to perform physical inspections surveyors, agents and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, representatives shall be paid for by Purchaser. Seller is not assigning any Property Information entitled to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability conduct feasibility studies with respect to the results Property and inspect the physical condition of or the Property. The Seller shall cooperate, wherever possible, with the inspections being performed by the Purchaser. In the event the Purchaser, for any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties reason whatsoever, express or implied, concerning is not satisfied with the (i) completeness condition of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) or Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore deems the Property to its condition is not suitable for Purchaser's intended use, then the Purchaser, prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, may elect to notify the Escrow Agent and the Seller of its election not to proceed with this transaction and, thereupon, the Escrow Agent shall return the Deposit to the Purchaser will have the right in its sole and absolute discretion to terminate this Agreement shall be null and void, except for such matters which are specified in this Agreement to survive the termination of this Agreement; provided, however, that the Deposit shall not be paid over by giving written notice of termination the Escrow Agent to Sellerthe Purchaser unless the Purchaser delivers to the Seller all studies, reports, tests and other documentation pertaining to the Property (collectively the "Work Product") obtained by the Purchaser from the Seller during the Inspection Period. In If, however, the event Purchaser does not timely exercises exercise its right to terminate rescind and withdraw from this Agreement, pursuant to the provisions of this Section VII, then the Purchaser shall not, thereafter, be permitted to withdraw from and cancel this Agreement pursuant to the provisions of this Section 3.3VII. Further, (a) in the event the Purchaser shall receive a full return of the Deposit (less the Independent Consideration), does not timely elect to withdraw from and (b) except for obligations that cancel this Agreement expressly states survive terminationpursuant to the provisions of this Section VII, neither party shall have any further rights against then the other hereunder. If Purchaser fails shall: (i) prior to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right tender an additional deposit to terminate this Agreement pursuant to this Section 3.3, Purchaser shall the Escrow Agent in the amount of ONE HUNDRED THIRTY THOUSAND AND NO/100 ($130,000.00) DOLLARS; and (ii) be deemed to have elected to terminate be purchasing the Property in an "AS IS" "WHERE IS" condition without relying upon any representation or warranty made on the part of the Seller, except as may be specifically provided for in this Agreement. During the Inspection Period and thereafter, in which casethe Purchaser, clauses Purchaser's architects, surveyors, agents and engineers shall have the right, after twelve (a12) and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 hours prior notice to the contrarySeller, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from go upon the Property and shall not conduct any environmental inspections and all surveys, marketing studies, soil tests, soil borings and similar investigations as the Purchaser shall require, provided that the Purchaser shall indemnify and save the Seller harmless with respect to any liabilities, obligations, suits and demands arising out of or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheldin connection with such activities. In addition, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior prior to entry for inspection of upon the Property by Purchaser and/or by Purchaser's representatives, the Purchaser must obtain, and during provide evidence of same to the Inspection Period, Purchaser and each agent, consultant or contractor shall, at no cost to Seller, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general public liability insurance with limits, coverage (providing not less than $1,000,000.00 per occurrence and $2,000,000.00 in of coverage) naming the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insuredinsured thereunder. In additionThe Purchaser will immediately repair or cause to be repaired, all any damage to the Property occasioned by such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to Selleractivities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (National Residential Properties Nv Inc)
Inspection Period. 3.1 Purchaser will shall have from the Effective Date until the date that is ninety (90) days thereafter 5:00 p.m. Pacific Daylight Time on December 1, 2006 (the “Inspection Period”), to perform physical inspections inspect the Property and other due diligencethe Due Diligence Documents, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or perform such other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller andProperty as Purchaser reasonably deems necessary, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms rights of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any tenants in possession of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) . Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection Period, Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Sellermay, on or before the expiration of the Inspection PeriodPeriod (the “Out Date”), written in its sole discretion, advise Seller and Escrow Holder, in writing, of its election to proceed or not to proceed with the purchase of the Property. If Purchaser, in its sole discretion, decides that it will not proceed with the purchase of the Property, Purchaser shall on or before the Out Date give notice to Seller and Escrow Holder that it is terminating this Agreement. If Purchaser has waived fails to notify Seller and Escrow Holder of its right decision on or before the Out Date, Purchaser shall be deemed to have elected not to terminate this Agreement pursuant to this Section 3.33.5. Upon any termination, in the absence of a default by Purchaser, the Deposit shall be refunded to Purchaser, all documents, including all Due Diligence Documents, received from Seller or Seller’s agents, shall be returned by Purchaser to Seller, Purchaser shall, at Seller’s request, at no cost to Seller, without representation or warranty, deliver to Seller true and correct copies of all third party reports obtained by Purchaser with respect to the Property, and, subject to Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12 hereof, neither party shall have any further rights or obligations hereunder. In the event Purchaser notifies Seller of its election to proceed with the purchase, then this Agreement will not be terminated, the Deposit shall become non-refundable (subject to the other terms and conditions of this Agreement) and Seller and Purchaser shall proceed to Closing in accordance with the terms and conditions hereof and the Inspection Period termination rights shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) and (b) of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 to the contrary, waived by Purchaser. Purchaser shall not be allowed to cause undertake any test to be performed soil borings, ground water testing or other “Phase II” investigative procedures without first having obtained the prior written consent of Seller, which involves any intrusive sampling from the Property and consent shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed). In connection with Purchaser’s inspection of the Property, which prohibited actions shall include without limitation making test boringsPurchaser agrees that:
(a) All inspection fees, sampling groundwaterengineering fees, conducting soil bearing tests and or other expenses of any other environmental tests and assessments. Prior kind incurred by Purchaser relating to entry for the inspection of the Property will be at Purchaser’s sole cost and expense;
(b) Purchaser will give Seller reasonable advance notice of the dates of all inspections and will schedule all tests and inspections during normal business hours whenever feasible unless otherwise requested by Seller;
(c) Seller will have the Inspection Periodright to have one or more representatives of Seller accompany Purchaser and Purchaser’s representatives, agents or designees while they are on the Property;
(d) Any entry by Purchaser, its representatives, agents or designees will not unreasonably interfere with Seller’s use of the Property or with the operations of any tenant;
(e) Purchaser will restore any damage caused to the Property by Purchaser’s entry on the Property for inspection purposes at Purchaser’s sole cost and expense if this transaction does not close; and
(f) In making any inspection hereunder, Purchaser will treat and each agent, consultant or contractor shall, at no cost will cause any representative of Purchaser to Seller, furnish treat all information obtained by Purchaser pursuant to Seller the terms of this Agreement as strictly confidential in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance accordance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerSection 11.12 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Realty Income Fund I L P)
Inspection Period. 3.1 Purchaser will shall have from the Effective Date until the date that is ninety (90) days thereafter 5:00 p.m. Central Standard Time on June 23, 2000, (the “"Inspection Period”)") to inspect the Property and the Due Diligence Documents, and to perform physical inspections and such other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller shall have no liability with respect to the results of or any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During the Inspection Period, Seller, upon at least one (1) day’s prior written notice, will provide Purchaser or its designated representatives access to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect to the Project; provided that: (i) such access shall be coordinated with a representative of Seller andProperty as Purchaser reasonably deems necessary, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms rights of such Tenant’s Lease; (iii) tenants in possession of the Property. Purchaser shall INDEMNIFYagrees to immediately commence its inspection efforts and will pursue same diligently, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any will advise Purchaser of its employeesfindings as soon as practicable. Purchaser may, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities on or about before the final day of the Inspection Period (the "Out Date"), in its sole discretion, advise Seller and Escrow Holder, in writing, of its election to proceed with the purchase of the Property. If Purchaser, in its sole discretion, decides that it will not proceed with the purchase of the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration Out Date give notice to Seller and Escrow Holder that it is terminating this Agreement. If Purchaser fails to notify Seller and Escrow Holder of its decision on or before the Inspection PeriodOut Date, Purchaser will shall be deemed to have notified Seller and Escrow Holder on the right in its sole and absolute discretion to terminate Out Date that Purchaser is terminating this Agreement Agreement. Upon any such termination, all documents, including all Due Diligence Documents, received from Seller or Seller's agents, shall be returned by giving written notice of termination Purchaser to Seller. In the event Purchaser timely exercises its right , and, subject to terminate this Agreement pursuant to this Section 3.3, Sections 3.5(a) and (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideratione), 3.6(b), 9.1, 11.2 and (b) except for obligations that this Agreement expressly states survive termination11.12 hereof, neither party shall have any further rights against or obligations hereunder. In the event this Agreement is not so terminated, the Deposit shall be delivered as hereinabove provided and shall become non-refundable (subject to the other hereunder. If terms and conditions of this Agreement) and Seller and Purchaser fails shall proceed to give Seller, on or before Closing in accordance with the expiration of terms and conditions hereof and the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Section 3.3, Purchaser Period termination rights shall be deemed to have elected to terminate this Agreementwaived by Purchaser. Purchaser shall not undertake any soil borings, in ground water testing or other "Phase 2" investigative procedures without first having obtained the prior written consent of Seller, which caseconsent shall not be unreasonably withheld or delayed. In connection with Purchaser's inspection of the Property, clauses Purchaser agrees that:
(a) and (b) All inspection fees, engineering fees, or other expenses of the preceding sentence shall apply.
3.4 Notwithstanding anything in this Section 3 any kind incurred by Purchaser relating to the contrary, Purchaser shall not be allowed to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection of the Property will be at Purchaser's sole cost and expense;
(b) Purchaser will give Seller reasonable advance notice of the dates of all inspections and will schedule all tests and inspections during normal business hours whenever feasible unless otherwise requested by Seller;
(c) Seller will have the Inspection Periodright to have one or more representatives of Seller accompany Purchaser and Purchaser's representatives, agents or designees while they are on the Property (provided that the exercise of such right shall not unreasonably delay Purchaser's inspections);
(d) Any entry by Purchaser, its representatives, agents or designees will not unreasonably interfere with Seller's use of the Property or with the operations of any tenant;
(e) Purchaser will restore any damage caused to the Property by Purchaser's entry on the Property for inspection purposes at Purchaser's sole cost and expense if this transaction does not close; and
(f) In making any inspection hereunder, Purchaser will treat and each agent, consultant or contractor shall, at no cost will cause any representative of Purchaser to Seller, furnish treat all information obtained by Purchaser pursuant to Seller the terms of this Agreement as confidential in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser and each agent, consultant or contractor have obtained commercial general liability insurance accordance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, for bodily injury, including death, and property damage combined. All such insurance shall name Seller as an additional insured. In addition, all such certificate(s) or other evidence shall indicate that the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) days’ prior written notice to SellerSection 11.12 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corporate Realty Income Fund I L P)
Inspection Period. 3.1 Purchaser will have from the Effective Date until the date that is ninety (90) days thereafter (the “Inspection Period”), to perform physical inspections and other due diligence, including, without limitation, to review those materials listed on Exhibit “C” attached hereto, which have been made available for Purchaser’s review (the “Property Information”) and to decide, in Purchaser’s sole discretion, whether the Project is satisfactory. Seller shall have an ongoing obligation during the pendency of this Agreement to provide Purchaser any additional Property Information created or modified in any respect after the commencement of the Inspection Period. Except as may otherwise be provided herein, all due diligence costs including, without limitation, all costs of building and site inspections, engineering, environmental and/or other reports or inspections undertaken by Purchaser, shall be paid for by Purchaser. Seller is not assigning any Property Information to Purchaser or any rights with respect thereto except at the Closing as required under this this Agreement, and Purchaser acknowledges that some of the Property Information was prepared by third parties other than Seller. Except as stated in this Agreement: (a) Seller Buyer shall have no liability with respect the Inspection Period to evaluate any and all matters relating to the results business and properties of or the Company and the Company Subsidiaries, including title, environmental, and engineering matters. At any inaccuracies contained in any item, document, or report prepared by third parties provided to Purchaser; and (b) Seller makes no representations or warranties whatsoever, express or implied, concerning the (i) completeness of such items, documents, or reports, (ii) the truth or accuracy of such items, documents, or reports or (iii) the existence or non-existence of any Hazardous Materials in, or, about the Property.
3.2 During time during the Inspection Period, SellerBuyer may elect not to proceed with the Merger at Buyer’s sole and absolute option and discretion, upon at least one (1) day’s prior for any reason or without any reason whatsoever, by giving written notice, will provide Purchaser or its designated representatives access notice thereof to the Property at reasonable times to conduct, at Purchaser’s sole cost and expense, its due diligence with respect Company (“Termination Election”). Unless Buyer shall have given written notice to the Project; provided that: (i) such access shall be coordinated Company stating that it has elected to proceed with a representative of Seller and, at Seller’s election, may be accompanied by a representative of Seller; (ii) any entry into any Tenant’s space shall be subject to the terms of such Tenant’s Lease; (iii) Purchaser shall INDEMNIFY, DEFEND and HOLD Seller HARMLESS from and against all claims for costs, expenses, losses, damages and/or liabilities (including, but not limited to, Seller’s reasonable attorneys’ fees and expenses actually incurred) (collectively “Claims”) asserted against or actually incurred by Seller or any of its employees, directors, owners, agents or other representatives arising from Purchaser’s due diligence activities Merger on or about the Property, excluding from the foregoing indemnity any Claims relating to pre-existing conditions and/or the gross negligence or willful misconduct of Seller or any of Seller’s agents, employees or representatives; (iv) Purchaser shall promptly repair any damage resulting from any such activities and restore the Property to its condition prior to such activities; (v) Purchaser shall fully comply with all applicable laws, ordinances, rules and regulations (collectively, the “Legal Requirements”); (vi) Purchaser shall not permit any inspections, investigations or other due diligence activities to result in any liens, judgments or other encumbrances being filed against the Property and shall, at its sole cost and expense, as promptly as possible but in no event more than fifteen (15) days after Purchaser receives actual notice of the filing or recording, discharge of record any such liens or encumbrances that are so filed or recorded; and (vii) Purchaser shall not permit any borings, drillings or samplings to be done on or at the Property without the prior written consent of Seller which may be withheld in Seller’s sole discretion. Purchaser’s liabilities under this Section 3.2 shall survive the Closing or earlier termination of this Agreement.
3.3 On or before the expiration of the Inspection PeriodPeriod (an “Election to Proceed”), Purchaser will have the right in its sole and absolute discretion to terminate this Agreement by giving written notice shall automatically terminate at and as of termination to Seller. In the event Purchaser timely exercises its right to terminate this Agreement pursuant to this Section 3.3, (a) Purchaser shall receive a full return of the Deposit (less the Independent Consideration), and (b) except for obligations that this Agreement expressly states survive termination, neither party shall have any further rights against the other hereunder. If Purchaser fails to give Seller, on or before the expiration of the Inspection Period, written notice that Purchaser has waived its right to terminate this Agreement pursuant to this Period as provided in Section 3.3, Purchaser shall be deemed to have elected to terminate this Agreement, in which case, clauses (a) and 1.8(c).
(b) On or before March 1, 2007, the Company shall provide Buyer with consolidated financial statements of the preceding sentence Company as of and for the year ending December 31, 2006. The Company shall applydeliver to Buyer on or before March 15, 2007 a true and complete copy of the audited consolidated balance sheet of the Company as at December 31, 2006 (the “Balance Sheet”) and the audited consolidated statements of income for the 12 months ended December 31, 2006 (together with the Balance Sheet, the “Audited Financial Information”).
3.4 Notwithstanding anything in this Section 3 (c) In the event Buyer delivers a Termination Election to the contrary, Purchaser shall not be allowed Company prior to cause any test to be performed which involves any intrusive sampling from the Property and shall not conduct any environmental inspections or testing of any nature whatsoever without Seller’s express written consent (not to be unreasonably withheld, conditioned or delayed), which prohibited actions shall include without limitation making test borings, sampling groundwater, conducting soil bearing tests and any other environmental tests and assessments. Prior to entry for inspection expiration of the Property and during Inspection Period or Buyer fails to deliver an Election to Proceed prior to the expiration of the Inspection PeriodPeriod (A) this Agreement shall automatically terminate without any further action by any party hereto, Purchaser (B) all materials supplied by the Company to Buyer shall be returned promptly to the Company, or, at Buyer’s option, destroyed by Buyer with Buyer certifying such destruction to the Company, (C) each of Buyer and each agent, consultant or contractor the Company shall, at no cost to Selleras promptly as practicable, furnish to Seller in a form reasonably satisfactory to Seller, a certificate or certificates of insurance, or other satisfactory evidence indicating that Purchaser execute and each agent, consultant or contractor have obtained commercial general liability insurance with limits, not less than $1,000,000.00 per occurrence and $2,000,000.00 deliver an Expiration Notice (as such term is defined in the aggregate, for bodily injury, including deathDeposit Agreement) to the Deposit Agent in accordance with the terms of the Deposit Agreement, and property damage combined. All such insurance shall name Seller as an additional insured. In addition(D) each party will be relieved of all other rights, all such certificate(s) or other evidence shall indicate that obligations and liabilities hereunder, except for the coverage evidenced thereby shall not be modified or cancelled without at least ten (10) daysparties’ prior written notice obligations pursuant to SellerSections 1.9, 5.2 and 8.2 and Article IX.
Appears in 1 contract
