Investigation Period. 5.1 Within five (5) business days from and after the Effective Date, each Seller shall deliver to Purchaser, either electronically or at each Project as specified on Exhibit E attached hereto, and thereafter Purchaser shall have access to, without representation or warranty regarding the contents thereof except as otherwise provided herein, the materials listed on Exhibit E attached hereto (the “Due Diligence Items”), and thereafter Purchaser shall have access to the materials listed on Exhibit E attached hereto (the “Due Diligence Items”). 5.2 Purchaser shall have forty-five (45) days from and after the Effective Date (the “Investigation Period”) to conduct, at Purchaser’s expense, economic feasibility studies, verify business and accounting records, test the Projects for environmental contamination (including but not limited to non-invasive Phase I environmental inspections) and any improvements thereon, and to otherwise study the Projects. Any environmental inspections or testing conducted on the Projects shall be referred to herein as the “Environmental Diligence.” Sellers and Purchaser hereby agree and acknowledge that no Phase II environmental inspections or other invasive inspections or sampling of soil or materials, including, without limitation, construction materials, either as part of the Phase I inspections or any other inspection, shall be performed at any Project without the prior written consent of the Seller for such Project. If consented to by such Seller, the proposed scope of work and the party who will perform the work shall be subject to such Seller’s review and approval in its sole discretion. Upon any Seller’s request, Purchaser shall deliver to such Seller copies of any Phase II or other environmental report to which such Seller consents as provided above. From and after the Effective Date, and upon reasonable prior notice to Sellers, and provided Purchaser does not interfere with the current operations on the Projects, or the rights of other occupants thereon, Purchaser shall have reasonable access to the Projects in order to conduct the tests and studies, and Sellers shall otherwise reasonably cooperate with Purchaser in conducting the tests and studies. Purchaser hereby agrees to indemnify and hold Sellers harmless from all costs, losses, damages and expenses, including reasonable attorneys’ fees, arising directly or indirectly as a result of such entry including, but not limited to, the activities, inspections and investigations by Purchaser or its agents or representatives and the negligent acts or omissions of Purchaser or said agents or representatives. In the event that any portion of any Project is damaged, disturbed or altered by virtue of Purchaser’s investigations or due diligence activities, Purchaser will, at its sole cost and expense, repair any damage to such Project caused by Purchaser’s activities upon the Project to the same condition as existed immediately prior to such damage occurring on the Project. Upon request of Purchaser and agreement by Seller, the Closing Date shall be extended to accommodate the provisions of these Sections 5.1 and 5.2. Upon Purchaser’s request for a Phase II investigation and the Seller’s consent to such Phase II investigation, the Investigation Period shall be extended an additional thirty (30) days. During such additional thirty (30) day period, the Investigation Period shall only be extended for the Community in which such Phase II is being performed and such extension shall only be for purposes of the Phase II investigation and the Purchaser shall have waived all other diligence with respect to such Community. All of the obligations of Purchaser under this Section 5.2 shall survive both the consummation of the sale contemplated hereunder and any earlier termination of this Agreement. 5.3 If Purchaser is not satisfied, in its sole and absolute discretion, with the condition of the Projects, then at any time prior to the expiration of the Investigation Period, Purchaser shall have the right to terminate this Agreement with respect to all of the Projects by giving written notice to Sellers prior to the expiration of the Investigation Period, and no party shall have any further obligations under this Agreement except for those obligations that expressly survive termination as set forth herein, and the Initial Deposit (including all interest accrued thereon), shall be promptly returned by the Title Company to Purchaser. Thereafter, the parties to this Agreement shall have no further responsibilities or obligations to one another except for those that expressly survive termination as set forth herein. However, if Purchaser does not elect to terminate this Agreement in accordance with its rights hereunder, then, except as may otherwise be provided for herein, this Agreement shall remain in full force and effect and the parties shall proceed to the Closings. Except as set forth in this Section 5.3, Section 4.1 above and Section 12.1, the parties hereby agree and acknowledge that this is an “all or none” transaction with respect to the Projects. Notwithstanding the foregoing, in the event Purchaser is not satisfied, in its sole and absolute discretion, with the condition of any of the Projects solely as a result of the Purchaser’s Environmental Diligence, Purchaser may the terminate this Agreement solely with respect to such Project or Projects by delivery of written notice to Sellers, whereupon either all of the Initial Deposit or a prorated portion of the Initial Deposit, based upon the allocated values of those non-terminated Projects as provided in the allocation schedule prepared pursuant to Section 2.2 herein (the “Prorated Deposit”), shall be returned to Purchaser by the Title Company, and Sellers and Purchaser shall proceed to Closing with respect to the non-terminated Projects. 5.4 Purchaser agrees that any information obtained by Purchaser, its agents, employees, contractors, consultants, representatives or partners, officers, directors, prospective lenders and accountants, attorneys, other professional advisors or prospective investors of Purchaser (collectively referred to herein as the “Permitted Outside Parties”) in conduct of the due diligence conducted by Purchaser during the Investigation Period shall be treated as confidential and shall be used only to evaluate the acquisition of the Projects from Sellers. Purchaser further acknowledges, on behalf of itself and the Permitted Outside Parties, that the Due Diligence Items obtained by, for or on behalf of Purchaser, and other information relating to all leases, subleases, occupancy and tenancy agreements and written commitments to lease currently in effect and covering any portion of the Projects (the “Tenant Leases”) are proprietary and confidential in nature and neither Purchaser nor the Permitted Outside Parties shall divulge the contents of such Due Diligence Items prior to the Closings, except as required by applicable law or order of court or governmental agency having jurisdiction. 5.5 If Purchaser does not terminate this Agreement prior to the expiration of the Investigation Period, Purchaser shall, on or before the expiration of the Investigation Period, give notice, in writing, to Sellers as to which contracts, including all equipment leases, service, utility, supply, maintenance, concession and employment contracts, agreements, and other continuing contractual obligations (collectively, the “Project Contracts”) Purchaser intends to assume at the Closings and which Project Contracts need to be terminated by Sellers prior to Closing. If Purchaser fails to give Sellers timely notice of the Project Contracts it wishes to assume, all of the Project Contracts shall be deemed assumed by Purchaser with respect to periods from and after the Closings. Such Project Contracts shall be assigned to Purchaser pursuant to an Assignment of Leases and General Assignment at the Closings in the form attached hereto as Exhibit F. Notwithstanding anything herein to the contrary, Purchaser and Sellers hereby agree that the contracts listed on Exhibit G attached hereto shall not be assigned by Sellers and assumed by Purchaser at the Closings (the “Sun Exclusive Contracts”).
Appears in 1 contract
Investigation Period. 5.1 Within five During the first one hundred fifty (5150) business days from and after the Effective Date, each Seller shall deliver to Purchaser, either electronically or at each Project and termination as specified of 5:00 p.m. on Exhibit E attached hereto, and thereafter Purchaser shall have access to, without representation or warranty regarding the contents thereof except as otherwise provided herein, the materials listed on Exhibit E attached hereto such one hundred fiftieth (the “Due Diligence Items”), and thereafter Purchaser shall have access to the materials listed on Exhibit E attached hereto (the “Due Diligence Items”).
5.2 Purchaser shall have forty-five (45150th) days from and after the Effective Date day (the “Investigation Period”) ), Purchaser may, subject to conductthe conditions set forth in Section 3.2 and except as otherwise expressly provided herein, at Purchaser’s expensesole cost and expense in all instances, economic feasibility studies, verify business and accounting records, test the Projects for environmental contamination perform a (including but not limited to non-invasive i) Phase I environmental inspectionsEnvironmental Site Assessment to identify any potential contamination of the Properties (“Phase I”), (ii) a structural engineering survey (“Structural Report”) and any improvements thereonsuch other tests, investigations, estimates, takeoffs and to otherwise study the Projects. Any environmental inspections or testing conducted on the Projects shall be referred to herein as the “Environmental Diligence.” Sellers inquiries, surveys and Purchaser hereby agree and acknowledge that no Phase II environmental inspections or other invasive inspections or sampling of soil or materials, site engineering studies (including, without limitation, construction materialsload bearing tests), either as part of the Phase I inspections or any other inspection, shall it deems necessary and appropriate. This Agreement can be performed at any Project without the prior written consent of the Seller for such Project. If consented to by such Seller, the proposed scope of work and the party who will perform the work shall be subject to such Seller’s review and approval in its sole discretion. Upon any Seller’s request, Purchaser shall deliver to such Seller copies of any Phase II or other environmental report to which such Seller consents as provided above. From and after the Effective Date, and upon reasonable prior notice to Sellers, and provided Purchaser does not interfere with the current operations on the Projects, or the rights of other occupants thereon, Purchaser shall have reasonable access to the Projects in order to conduct the tests and studies, and Sellers shall otherwise reasonably cooperate with Purchaser in conducting the tests and studies. Purchaser hereby agrees to indemnify and hold Sellers harmless from all costs, losses, damages and expenses, including reasonable attorneys’ fees, arising directly or indirectly as a result of such entry including, but not limited to, the activities, inspections and investigations terminated by Purchaser or its agents or representatives and the negligent acts or omissions of Purchaser or said agents or representatives. In the event that any portion of any Project is damaged, disturbed or altered by virtue of Purchaser’s investigations or due diligence activities, Purchaser will, at its sole cost and expense, repair any damage to such Project caused by Purchaser’s activities upon the Project to the same condition as existed immediately prior to such damage occurring on the Project. Upon request of Purchaser and agreement by Seller, the Closing Date shall be extended to accommodate the provisions of these Sections 5.1 and 5.2. Upon Purchaser’s request for a Phase II investigation and the Seller’s consent to such Phase II investigation, the Investigation Period shall be extended an additional thirty (30) days. During such additional thirty (30) day period, the Investigation Period shall only be extended for the Community in which such Phase II is being performed and such extension shall only be for purposes of the Phase II investigation and the Purchaser shall have waived all other diligence with respect to such Community. All of the obligations of Purchaser under this Section 5.2 shall survive both the consummation of the sale contemplated hereunder and any earlier termination of this Agreement.
5.3 If Purchaser is not satisfied, in its sole and absolute discretion, with the condition of the Projects, then at any time prior to the expiration of the Investigation Period, only upon the specific terms and conditions contained below, by delivering to Seller a notice thereof (which may be by facsimile or email) terminating the Agreement. If Purchaser does not timely terminate this Agreement, as specifically permitted below, on or before the expiration of the Investigation Period then, except as otherwise provided in this Agreement, Purchaser shall be unconditionally obligated to purchase the Properties, without any adjustments to the Purchase Price or any other obligations of Seller, subject to, and in accordance with, all of the terms and provisions of this Agreement, and the Deposit shall be non-refundable to Purchaser, except as otherwise specifically set forth in this Agreement. If this Agreement is terminated by Purchaser in accordance with Section 3.1 hereof, Seller shall within one (1) day following receipt of such Notice, instruct Escrow Holder to refund the Deposit, less the Break-Up Fee (hereinafter defined), to Purchaser. Purchaser shall have the right to terminate this Agreement with respect to all of the Projects by giving written notice to Sellers for any reason, or no reason, provided it submits, prior to the expiration of the Investigation Period, and no party shall have any a Notice, confirming Purchaser’s termination election. If the Phase I recommends further obligations under this Agreement except for those obligations that expressly survive termination as set forth herein, and the Initial Deposit (including all interest accrued thereon), shall be promptly returned by the Title Company to Purchaser. Thereafter, the parties to this Agreement shall have no further responsibilities or obligations to one another except for those that expressly survive termination as set forth herein. However, if Purchaser does not elect to terminate this Agreement in accordance with its rights hereunder, then, except as may otherwise be provided for herein, this Agreement shall remain in full force and effect and the parties shall proceed to the Closings. Except as set forth in this Section 5.3, Section 4.1 above and Section 12.1, the parties hereby agree and acknowledge that this is an “all or none” transaction with respect to the Projects. Notwithstanding the foregoing, testing in the event form of Phase II and Purchaser is not satisfiedrequests such additional testing, in its sole and absolute discretion, with the condition of any of the Projects solely as a result of the Purchaser’s Environmental Diligence, Purchaser may the terminate this Agreement solely with respect to such Project or Projects by delivery of written notice to Sellers, whereupon either all of the Initial Deposit or a prorated portion of the Initial Deposit, based upon the allocated values of those non-terminated Projects as provided more fully in the allocation schedule prepared pursuant to Section 2.2 herein (the “Prorated Deposit”)3.2 below, shall be returned to Purchaser by the Title Company, and Sellers and Purchaser shall proceed to Closing with respect to the non-terminated Projects.
5.4 Purchaser agrees that any information obtained by Purchaser, its agents, employees, contractors, consultants, representatives or partners, officers, directors, prospective lenders and accountants, attorneys, other professional advisors or prospective investors of Purchaser (collectively referred to herein as the “Permitted Outside Parties”) in conduct of the due diligence conducted by Purchaser during the Investigation Period shall be treated as confidential extended day-for-day for each day that Purchaser delivers such request to Seller and shall be used only to evaluate the acquisition of the Projects from Sellers. Purchaser further acknowledges, on behalf of itself and the Permitted Outside Parties, that the Due Diligence Items obtained by, for or on behalf of Purchaser, and other information relating to all leases, subleases, occupancy and tenancy agreements and written commitments to lease currently in effect and covering any portion of the Projects (the “Tenant Leases”) are proprietary and confidential in nature and neither Purchaser nor the Permitted Outside Parties shall divulge the contents of thereafter until Seller responds regarding such Due Diligence Items prior to the Closings, except as required by applicable law or order of court or governmental agency having jurisdictionrequested Phase II.
5.5 If Purchaser does not terminate this Agreement prior to the expiration of the Investigation Period, Purchaser shall, on or before the expiration of the Investigation Period, give notice, in writing, to Sellers as to which contracts, including all equipment leases, service, utility, supply, maintenance, concession and employment contracts, agreements, and other continuing contractual obligations (collectively, the “Project Contracts”) Purchaser intends to assume at the Closings and which Project Contracts need to be terminated by Sellers prior to Closing. If Purchaser fails to give Sellers timely notice of the Project Contracts it wishes to assume, all of the Project Contracts shall be deemed assumed by Purchaser with respect to periods from and after the Closings. Such Project Contracts shall be assigned to Purchaser pursuant to an Assignment of Leases and General Assignment at the Closings in the form attached hereto as Exhibit F. Notwithstanding anything herein to the contrary, Purchaser and Sellers hereby agree that the contracts listed on Exhibit G attached hereto shall not be assigned by Sellers and assumed by Purchaser at the Closings (the “Sun Exclusive Contracts”).
Appears in 1 contract
Investigation Period. 5.1 Within five Seller acknowledges that to enable Buyer to proceed with this transaction Buyer may undertake or cause to have undertaken certain tests and studies, including by way of illustration but not limitation (5i) business days from marketing studies, (ii) investigations relating to land use, permitting, zoning and after entitlements, (iii) soil tests and (iv) engineering and environmental studies (hereinafter collectively referred to as “Test and Studies”) in which to determine whether, in Buyer’s sole discretion, it would be feasible, economically or otherwise, to go forward with Buyer’s acquisition of the Effective Date, each Seller shall deliver to Purchaser, either electronically or at each Project as specified on Exhibit E attached hereto, and thereafter Purchaser Property. Buyer shall have access tountil 11:59 P.M. on December 10, without representation or warranty regarding the contents thereof except as otherwise provided 2004 (herein, the materials listed on Exhibit E attached hereto (the “Due Diligence Items”), and thereafter Purchaser shall have access to the materials listed on Exhibit E attached hereto (the “Due Diligence Items”).
5.2 Purchaser shall have forty-five (45) days from and after the Effective Date (the “Investigation Period”) ), in which to conductundertake any Tests and Studies that Buyer, at Purchaser’s expense, economic feasibility studies, verify business and accounting records, test the Projects for environmental contamination (including but not limited to non-invasive Phase I environmental inspections) and any improvements thereon, and to otherwise study the Projects. Any environmental inspections or testing conducted on the Projects shall be referred to herein as the “Environmental Diligence.” Sellers and Purchaser hereby agree and acknowledge that no Phase II environmental inspections or other invasive inspections or sampling of soil or materials, including, without limitation, construction materials, either as part of the Phase I inspections or any other inspection, shall be performed at any Project without the prior written consent of the Seller for such Project. If consented to by such Seller, the proposed scope of work and the party who will perform the work shall be subject to such Seller’s review and approval in its sole discretion, deems necessary to determine the feasibility of its acquisition. Upon any Seller’s request, Purchaser shall deliver Seller agrees to such Seller copies of any Phase II or other environmental report to which such Seller consents as provided above. From and after the Effective Date, and upon reasonable prior notice to Sellers, and provided Purchaser does not interfere cooperate in connection with the current operations on the Projects, or the rights of other occupants thereon, Purchaser shall have reasonable access to the Projects in order to conduct the tests foregoing and studies, and Sellers shall otherwise reasonably cooperate with Purchaser in conducting the tests and studies. Purchaser hereby agrees to indemnify and hold Sellers harmless from all costs, losses, damages and expenses, including reasonable attorneys’ fees, arising directly or indirectly as a result of such entry including, but not limited to, the activities, inspections and investigations by Purchaser or its agents or representatives and the negligent acts or omissions of Purchaser or said agents or representatives. In the event that any portion of any Project is damaged, disturbed or altered by virtue of Purchaser’s investigations or due diligence activities, Purchaser will, at its sole cost and expense, repair any damage to such Project caused by Purchaser’s activities upon the Project to the same condition as existed immediately prior to such damage occurring on the Project. Upon request of Purchaser and agreement by Seller, the Closing Date shall be extended to accommodate the provisions of these Sections 5.1 and 5.2. Upon Purchaser’s request for a Phase II investigation and the Seller’s consent to such Phase II investigation, the Investigation Period shall be extended an additional thirty (30) days. During such additional thirty (30) day period, the Investigation Period shall only be extended for the Community in which such Phase II is being performed and such extension shall only be for purposes of the Phase II investigation and the Purchaser shall have waived all other diligence with respect to such Community. All of the obligations of Purchaser under this Section 5.2 shall survive both the consummation of the sale contemplated hereunder and any earlier termination of this Agreement.
5.3 If Purchaser is not satisfied, in its sole and absolute discretion, with the condition of the Projects, then at any time prior to the expiration of the Investigation Period, Purchaser shall have the right to terminate this Agreement with respect to all of the Projects by giving written notice to Sellers prior to the expiration of the Investigation Period, and no party shall have any further obligations under this Agreement except for those obligations that expressly survive termination as set forth herein, and the Initial Deposit (including all interest accrued thereon), shall be promptly returned by the Title Company to Purchaser. Thereafter, the parties to this Agreement shall have no further responsibilities or obligations to one another except for those that expressly survive termination as set forth herein. However, if Purchaser does not elect to terminate this Agreement in accordance with its rights hereunder, then, except as may otherwise be provided for herein, this Agreement shall remain in full force and effect and the parties shall proceed to the Closings. Except as set forth in this Section 5.3, Section 4.1 above and Section 12.1, the parties hereby agree and acknowledge that this is an “all or none” transaction with respect to the Projects. Notwithstanding the foregoing, in the event Purchaser is not satisfied, in its sole and absolute discretion, with the condition of any of the Projects solely as a result of the Purchaser’s Environmental Diligence, Purchaser may the terminate this Agreement solely with respect to such Project or Projects by delivery of written notice to Sellers, whereupon either all of the Initial Deposit or a prorated portion of the Initial Deposit, based upon the allocated values of those non-terminated Projects as provided in the allocation schedule prepared pursuant to Section 2.2 herein (the “Prorated Deposit”), shall be returned to Purchaser by the Title Company, and Sellers and Purchaser shall proceed to Closing with respect to the non-terminated Projects.
5.4 Purchaser agrees that any information obtained by PurchaserBuyer, its agents, employees, contractorsrepresentatives, consultantsor contractors shall be provided access promptly, representatives or partnersupon request, officersto such information (but only to the extent that such information is currently in Seller’s actual possession) as shall be reasonably necessary to examine the Property and the condition thereof. In this regard, directorsSeller has delivered to Buyer any and all reports and studies that it has in its possession relating to the Property including but not limited to any and all surveys, prospective lenders title insurance reports, engineering reports, environmental reports and accountantssoil tests. Seller covenants that it has previously delivered to Buyer full, attorneys, other professional advisors or prospective investors of Purchaser (collectively referred to herein as the “Permitted Outside Parties”) in conduct complete and legible copies of the due diligence conducted following materials relative to the Property:
(a) The latest title insurance policy, together with all exception matters listed therein;
(b) The latest survey of the Property;
(c) Any and all inspection reports, soil test results, environmental audits, engineering studies and all other reports and studies of a similar nature relating to the Property which are in the possession of Seller. If for any reason whatsoever, or for no reason, between the date hereof and the end of the Investigation Period, Buyer elects not to proceed with the transaction contemplated herein, Buyer may cancel this Agreement in which event it shall be of no further force and effect upon either party by Purchaser during notifying Seller and Escrow Agent of such election, and Escrow Agent shall deliver the Deposit, less the Expenses (which are defined in Section 1.7 hereof and which shall be paid from the Deposit as set forth in Section 1.7 hereof), to Buyer promptly thereafter. A failure to so notify Seller and Escrow Agent within the Investigation Period shall be treated deemed as confidential notice to Seller that Buyer has elected to proceed with the transaction contemplated hereby. In this regard, it is expressly acknowledged by Buyer that the Deposit stands as consideration paid to Seller for Seller’s taking the Property off the market and is non-refundable to Buyer unless otherwise expressly stated in this Agreement. Seller agrees that Buyer and its agents, contractors or employees shall have the right to enter upon the Property for the purpose of performing its Tests and Studies, provided said activities shall not in any way damage or harm the Property. Buyer agrees to indemnify and to save and hold harmless Seller of and from any and all liability, costs, claims and expenses, directly or indirectly, incurred or sustained by Seller in connection with the Tests and Studies and the other inspection activities permitted under this Section. Buyer shall not permit any mechanics’ lien to be attached to the Property as a result of its Tests and Studies and shall be used only to evaluate promptly restore the acquisition Property if it is in any way disturbed as a result of the Projects from Sellers. Purchaser further acknowledges, Tests and Studies or any other activities performed on behalf of itself and the Permitted Outside Parties, that the Due Diligence Items obtained by, for or on behalf of Purchaser, and other information relating to all leases, subleases, occupancy and tenancy agreements and written commitments to lease currently Property in effect and covering any portion of the Projects (the “Tenant Leases”) are proprietary and confidential in nature and neither Purchaser nor the Permitted Outside Parties shall divulge the contents of such Due Diligence Items prior to the Closings, except as required by applicable law or order of court or governmental agency having jurisdictionconnection with Buyer’s inspection thereof.
5.5 If Purchaser does not terminate this Agreement prior to the expiration of the Investigation Period, Purchaser shall, on or before the expiration of the Investigation Period, give notice, in writing, to Sellers as to which contracts, including all equipment leases, service, utility, supply, maintenance, concession and employment contracts, agreements, and other continuing contractual obligations (collectively, the “Project Contracts”) Purchaser intends to assume at the Closings and which Project Contracts need to be terminated by Sellers prior to Closing. If Purchaser fails to give Sellers timely notice of the Project Contracts it wishes to assume, all of the Project Contracts shall be deemed assumed by Purchaser with respect to periods from and after the Closings. Such Project Contracts shall be assigned to Purchaser pursuant to an Assignment of Leases and General Assignment at the Closings in the form attached hereto as Exhibit F. Notwithstanding anything herein to the contrary, Purchaser and Sellers hereby agree that the contracts listed on Exhibit G attached hereto shall not be assigned by Sellers and assumed by Purchaser at the Closings (the “Sun Exclusive Contracts”).
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Land Lease Inc)
Investigation Period. 5.1 Within five (5) business days from and after Commencing on the Effective Date, each Seller shall deliver to Purchaser, either electronically or at each Project as specified on Exhibit E attached heretodate of this Agreement, and for a period of sixty (60) days thereafter (herein the "Investigation Period"), the Purchaser shall have access to, without representation or warranty regarding the contents thereof except as otherwise provided herein, the materials listed on Exhibit E attached hereto (the “Due Diligence Items”), right and thereafter Purchaser shall have access to the materials listed on Exhibit E attached hereto (the “Due Diligence Items”).
5.2 Purchaser shall have forty-five (45) days from and after the Effective Date (the “Investigation Period”) to conduct, at Purchaser’s expense, economic feasibility studies, verify business and accounting records, test the Projects for environmental contamination (including but not limited to non-invasive Phase I environmental inspections) and any improvements thereon, and to otherwise study the Projects. Any environmental inspections or testing conducted on the Projects shall be referred to herein as the “Environmental Diligence.” Sellers and Purchaser hereby agree and acknowledge that no Phase II environmental inspections or other invasive inspections or sampling of soil or materials, including, without limitation, construction materials, either as part of the Phase I inspections or any other inspection, shall be performed at any Project without the prior written consent of the Seller for such Project. If consented to by such Seller, the proposed scope of work and the party who will perform the work shall be subject to such Seller’s review and approval in its sole discretion. Upon any Seller’s request, Purchaser shall deliver to such Seller copies of any Phase II or other environmental report to which such Seller consents as provided above. From and after the Effective Date, and upon reasonable prior notice to Sellers, and provided Purchaser does not interfere with the current operations on the Projects, or the rights of other occupants thereon, Purchaser shall have reasonable access to the Projects in order to conduct the tests and studies, and Sellers shall otherwise reasonably cooperate with Purchaser in conducting the tests and studies. Purchaser hereby agrees to indemnify and hold Sellers harmless from all costs, losses, damages and expenses, including reasonable attorneys’ fees, arising directly or indirectly as a result of such entry including, but not limited to, the activities, inspections and investigations by Purchaser or its agents or representatives and the negligent acts or omissions of Purchaser or said agents or representatives. In the event that any portion of any Project is damaged, disturbed or altered by virtue of Purchaser’s investigations or due diligence activities, Purchaser willopportunity, at its sole cost and expense, repair any damage to such Project caused by Purchaser’s activities upon the Project investigate various matters relating to the same condition as existed immediately prior to such damage occurring on the ProjectProperty. Upon request of Purchaser and agreement by Seller, the Closing Date shall be extended to accommodate the provisions of these Sections 5.1 and 5.2. Upon Purchaser’s request for a Phase II investigation and the Seller’s consent to such Phase II investigation, During the Investigation Period shall be extended an additional thirty (30) days. During such additional thirty (30) day periodthe Purchaser may, in his sole discretion, at any time, terminate this Agreement, by giving written notice to the Seller, whereupon, the Investigation Period Seller shall only be extended for immediately authorize the Community in which such Phase II is being performed and such extension shall only be for purposes return of the Phase II investigation and Initial Deposit to the Purchaser and neither party shall have waived all further liability or obligation to the other diligence with respect to such Community. All of the obligations of Purchaser under this Section 5.2 shall survive both the consummation of the sale contemplated hereunder and any earlier termination of this Agreement.
5.3 If Purchaser is not satisfied, in its sole and absolute discretion, with the condition of the Projects, then at any time prior to the expiration of the Investigation Period, Purchaser shall have the . The Purchaser's right to terminate this Agreement with respect to all shall terminate at the end of the Projects by giving written notice to Sellers prior Inspection Period. In regard to the expiration Purchaser's investigation:
(a) SELLER'S INSPECTION DOCUMENTS. Within ten (10) days after the execution of the Investigation PeriodAgreement, the Seller shall deliver to the Purchaser complete copies of all documentation in Seller's possession or under its control relating to the physical characteristics of the Property, including, but not limited to surveys and engineering, testing, inspections, and no party shall have any further obligations under this Agreement except for those obligations that expressly survive termination as set forth hereinenvironmental assessments, reports and the Initial Deposit (including all interest accrued thereon), shall be promptly returned by the Title Company to Purchaser. Thereafter, the parties to this Agreement shall have no further responsibilities or obligations to one another except for those that expressly survive termination as set forth herein. Howeverrecommendations, if Purchaser does not elect to terminate this Agreement in accordance with its rights hereunderany, then, except as may otherwise be provided for herein, this Agreement shall remain in full force and effect and the parties shall proceed to the Closings. Except as set forth in this Section 5.3, Section 4.1 above and Section 12.1, the parties hereby agree and acknowledge that this is an “all or none” transaction with respect to the Projects. Notwithstanding the foregoingProperty, in the event Purchaser is not satisfiedany notices of investigations or violations, in its sole and absolute discretionany orders, with the condition of any of the Projects solely as a result of the Purchaser’s Environmental Diligencerecommendations or requests for remediation, Purchaser may the terminate this Agreement solely with respect to such Project response or Projects by delivery of written notice to Sellers, whereupon either all of the Initial Deposit or a prorated portion of the Initial Deposit, based upon the allocated values of those non-terminated Projects as provided in the allocation schedule prepared pursuant to Section 2.2 herein (the “Prorated Deposit”), shall be returned to Purchaser by the Title Company, and Sellers and Purchaser shall proceed to Closing other action with respect to the non-terminated Projects.
5.4 Purchaser agrees that any information obtained by Purchaser, its agents, employees, contractors, consultants, representatives or partners, officers, directors, prospective lenders and accountants, attorneys, other professional advisors or prospective investors of Purchaser (collectively referred to herein as the “Permitted Outside Parties”) in conduct environmental condition of the due diligence conducted Property received by Purchaser during the Investigation Period shall Seller from any governmental agency, and any environmental remediation, response or other action plans or agreements which have been or are intended to be treated as confidential and shall be used only to evaluate the acquisition of the Projects from Sellers. Purchaser further acknowledges, on behalf of itself and the Permitted Outside Parties, that the Due Diligence Items obtained by, for implemented by or on behalf of Purchaser, and other information relating to all leases, subleases, occupancy and tenancy agreements and written commitments to lease currently in effect and covering any portion of the Projects (the “Tenant Leases”) are proprietary and confidential in nature and neither Purchaser nor the Permitted Outside Parties shall divulge the contents of such Due Diligence Items prior to the Closings, except as required by applicable law or order of court or governmental agency having jurisdiction.
5.5 If Purchaser does not terminate this Agreement prior to the expiration of the Investigation Period, Purchaser shall, on or before the expiration of the Investigation Period, give notice, in writing, to Sellers as to which contracts, including all equipment leases, service, utility, supply, maintenance, concession and employment contracts, agreements, and other continuing contractual obligations (collectively, the “Project Contracts”) Purchaser intends to assume at the Closings and which Project Contracts need to be terminated by Sellers prior to Closing. If Purchaser fails to give Sellers timely notice of the Project Contracts it wishes to assume, all of the Project Contracts shall be deemed assumed by Purchaser Seller with respect to periods from and after the ClosingsProperty. Such Project Contracts In addition, the Seller shall be assigned to Purchaser pursuant to an Assignment of Leases and General Assignment at the Closings in the form attached hereto as Exhibit F. Notwithstanding anything herein deliver to the contraryPurchaser copies of all leases or tenancy agreements that are currently associated with the Property, including the Contracts (defined below). The Seller certifies to the Purchaser that Seller has no other leases or tenancies, either written or oral, concerning the Property which extend longer than month to month except the Contracts. The Purchaser will use such information only for the purpose of evaluating the condition of the Property, and Sellers hereby agree that will return all such information to the contracts listed on Exhibit G attached hereto shall Seller if the transaction contemplated by this Agreement does not be assigned by Sellers and assumed by Purchaser at the Closings (the “Sun Exclusive Contracts”)close for any reason.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Aei Real Estate Fund Xvi LTD Partnership)
Investigation Period. 5.1 (a) During the period commencing on the date hereof and continuing until the expiration of forty-five (45) days after the date hereof (the "Investigation Period") as may be extended as provided below, Purchaser and its agents, at Purchaser's sole cost, shall have the right, during reasonable hours, without interference to business and tenants/lessees and their respective invitees at the Property, to inspect the Property upon reasonable advanced notice to Seller and to undertake any non-invasive tests and surveys and other activities as it shall determine in connection therewith. Without limiting the foregoing, Purchaser shall have the right to satisfy itself that:
(i) the environmental condition of the Property is acceptable to Purchaser;
(ii) the leases are acceptable to Purchaser;
(iii) the zoning for the Property shall permit its current use as a self storage facility; and
(iv) such other matters as deemed advisable by Purchaser.
(b) Within five (5) business days from and after the Effective Datedate hereof, each Seller shall use its best efforts to deliver to Purchaser for its review, true, complete and correct copies of the following documents (collectively, the "Documents") which are in Seller's possession or control:
(i) Any existing title work for the Property;
(ii) Any existing survey of the Property;
(iii) Any environmental reports, notices and studies relating to the Property;
(iv) Any plans and specifications relating to the Improvements;
(v) Copies of all contracts, agreements, or service agreements or licenses relating to the Property or the operation thereof;
(vi) Copies of all leases shall be made available at the real estate for Purchaser's inspection and review;
(vii) Copies of 2002 and 2003 real estate tax bills, together with any notices of assessed valuation;
(viii) Copy of any notice from a governmental agency alleging a violation of law or ordinance;
(ix) Any plans, reports and analyses relating to physical condition any of the Improvements or the systems or components thereof;
(x) All proposals, studies or bids for improvements, repairs or alterations of any of the Improvements having a cost in excess of $5,000;
(xi) All utility bills for calendar year 2003 and 2004;
(xii) Rent roll dated as of the first day of the month in which this Agreement has been executed;
(xiii) Copies of statements of income and expenses for the operation of the Property and the business thereon for 2002, 2003 and year to date 2004 (together with copies of schedules to Seller's tax return confirming such information); and
(xiv) Copies of insurance policies relating to the Property and any claims made under any property insurance policies within the preceding three years. In addition, Seller shall deliver promptly to Purchaser for Purchaser's review and approval, any reports or materials relating to, updating or modifying any of the Documents that are within Seller's control or possession at any time prior to Closing and any other materials reasonably requested by Purchaser during the Investigation Period arising from its review of the Documents. The Investigation Period shall be extended for each day that Seller is delayed in delivering the Documents to Purchaser. To the extent that Seller does not have possession or control of the Documents, either electronically or at each Project as specified on Exhibit E attached hereto, and thereafter Seller shall so certify to Purchaser within five (5) business days after the Date Hereof.
(b) Purchaser shall have access tothe absolute right to terminate this Agreement by providing written notice thereof to Seller at any time commencing with the date of this Contract and ending forty-eight hours immediately following the expiration of the Investigation Period. If Purchaser so terminates this Agreement, without representation or warranty regarding Purchaser shall be entitled to an immediate return of the contents thereof except full amount of the Xxxxxxx Money plus interest earned thereon and thereupon the parties shall have no further obligation to each other. In the event Purchaser does not terminate this Agreement as otherwise provided herein, the materials listed on Exhibit E attached hereto in this subparagraph (the “Due Diligence Items”b), and thereafter then Purchaser shall be deemed to have access to satisfied itself of the materials listed on Exhibit E attached hereto (the “Due Diligence Items”)conditions provided for in 5(a) above.
5.2 (c) Purchaser shall have forty-five (45) days indemnify and hold Seller harmless from and after the Effective Date (the “Investigation Period”) to conductagainst all costs, at Purchaser’s expenseexpenses, economic feasibility studiesdamages, verify business and accounting recordsliabilities, test the Projects for environmental contamination (including but not limited to non-invasive Phase I environmental inspections) and any improvements thereon, and to otherwise study the Projects. Any environmental inspections liens or testing conducted on the Projects shall be referred to herein as the “Environmental Diligence.” Sellers and Purchaser hereby agree and acknowledge that no Phase II environmental inspections or other invasive inspections or sampling of soil or materialsclaims, including, without limitation, construction materialsattorneys' fees and court costs, either as part of the Phase I inspections or directly related to any other inspection, shall be performed at any Project without the prior written consent of the Seller for such Project. If consented to by such Seller, the proposed scope of work and the party who will perform the work shall be subject to such Seller’s review and approval in its sole discretion. Upon any Seller’s request, Purchaser shall deliver to such Seller copies of any Phase II or other environmental report to which such Seller consents as provided above. From and after the Effective Date, and upon reasonable prior notice to Sellers, and provided Purchaser does not interfere with the current operations entry on the Projects, or the rights of other occupants thereon, Purchaser shall have reasonable access to the Projects in order to conduct the tests and studies, and Sellers shall otherwise reasonably cooperate with Purchaser in conducting the tests and studies. Purchaser hereby agrees to indemnify and hold Sellers harmless from all costs, losses, damages and expenses, including reasonable attorneys’ fees, arising directly or indirectly as a result of such entry including, but not limited to, the activities, inspections and investigations by Purchaser or its agents or representatives and the negligent acts or omissions of Purchaser or said agents or representatives. In the event that any portion of any Project is damaged, disturbed or altered by virtue of Purchaser’s investigations or due diligence activities, Purchaser will, at its sole cost and expense, repair any damage to such Project caused by Purchaser’s activities upon the Project to the same condition as existed immediately prior to such damage occurring on the Project. Upon request of Purchaser and agreement by Seller, the Closing Date shall be extended to accommodate the provisions of these Sections 5.1 and 5.2. Upon Purchaser’s request for a Phase II investigation and the Seller’s consent to such Phase II investigation, the Investigation Period shall be extended an additional thirty (30) days. During such additional thirty (30) day period, the Investigation Period shall only be extended for the Community in which such Phase II is being performed and such extension shall only be for purposes of the Phase II investigation and the Purchaser shall have waived all other diligence with respect to such Community. All of the obligations of Purchaser under this Section 5.2 shall survive both the consummation of the sale contemplated hereunder and any earlier termination of this Agreement.
5.3 If Purchaser is not satisfied, in its sole and absolute discretion, with the condition of the Projects, then at any time prior to the expiration of the Investigation Period, Purchaser shall have the right to terminate this Agreement with respect to all of the Projects by giving written notice to Sellers prior to the expiration of the Investigation Period, and no party shall have any further obligations under this Agreement except for those obligations that expressly survive termination as set forth herein, and the Initial Deposit (including all interest accrued thereon), shall be promptly returned by the Title Company to Purchaser. Thereafter, the parties to this Agreement shall have no further responsibilities or obligations to one another except for those that expressly survive termination as set forth herein. However, if Purchaser does not elect to terminate this Agreement in accordance with its rights hereunder, then, except as may otherwise be provided for herein, this Agreement shall remain in full force and effect and the parties shall proceed to the Closings. Except as set forth in this Section 5.3, Section 4.1 above and Section 12.1, the parties hereby agree and acknowledge that this is an “all or none” transaction with respect to the Projects. Notwithstanding the foregoing, in the event Purchaser is not satisfied, in its sole and absolute discretion, with the condition of any of the Projects solely as a result of the Purchaser’s Environmental Diligence, Purchaser may the terminate this Agreement solely with respect to such Project or Projects by delivery of written notice to Sellers, whereupon either all of the Initial Deposit or a prorated portion of the Initial Deposit, based upon the allocated values of those non-terminated Projects as provided in the allocation schedule prepared pursuant to Section 2.2 herein (the “Prorated Deposit”), shall be returned to Purchaser by the Title Company, and Sellers and Purchaser shall proceed to Closing with respect to the non-terminated Projects.
5.4 Purchaser agrees that any information obtained Property by Purchaser, its agents, employeesemployees or contractors in the course of performing inspections, contractorstests and/or inquiries provided for under this Agreement, consultants, representatives or partners, officers, directors, prospective lenders resulting from any conditions on the Property created by Purchaser's entry and accountants, attorneys, other professional advisors testing. The foregoing indemnity shall survive the Closing Date or prospective investors earlier termination of Purchaser (collectively referred to herein as the “Permitted Outside Parties”) in conduct of the due diligence conducted by Purchaser during the Investigation Period shall be treated as confidential and shall be used only to evaluate the acquisition of the Projects from Sellers. Purchaser further acknowledges, on behalf of itself and the Permitted Outside Parties, that the Due Diligence Items obtained by, for or on behalf of Purchaser, and other information relating to all leases, subleases, occupancy and tenancy agreements and written commitments to lease currently in effect and covering any portion of the Projects (the “Tenant Leases”) are proprietary and confidential in nature and neither Purchaser nor the Permitted Outside Parties shall divulge the contents of such Due Diligence Items prior to the Closings, except as required by applicable law or order of court or governmental agency having jurisdiction.
5.5 If Purchaser does not terminate this Agreement prior to the expiration for a period of the Investigation Period, Purchaser shall, on or before the expiration of the Investigation Period, give notice, in writing, to Sellers as to which contracts, including all equipment leases, service, utility, supply, maintenance, concession and employment contracts, agreements, and other continuing contractual obligations one (collectively, the “Project Contracts”1) Purchaser intends to assume at the Closings and which Project Contracts need to be terminated by Sellers prior to Closing. If Purchaser fails to give Sellers timely notice of the Project Contracts it wishes to assume, all of the Project Contracts shall be deemed assumed by Purchaser with respect to periods from and after the Closings. Such Project Contracts shall be assigned to Purchaser pursuant to an Assignment of Leases and General Assignment at the Closings in the form attached hereto as Exhibit F. Notwithstanding anything herein to the contrary, Purchaser and Sellers hereby agree that the contracts listed on Exhibit G attached hereto shall not be assigned by Sellers and assumed by Purchaser at the Closings (the “Sun Exclusive Contracts”)year.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Chrisken Partners Cash Income Fund L P)
Investigation Period. 5.1 Within five From the date of execution of this Agreement (5) business days from and after the hereinafter “Effective Date, each Seller shall deliver to Purchaser, either electronically or at each Project as specified on Exhibit E attached hereto, and thereafter Purchaser shall have access to, without representation or warranty regarding the contents thereof except as otherwise provided herein, the materials listed on Exhibit E attached hereto (the “Due Diligence Items”), and thereafter Purchaser shall have access to for a period up until the materials listed on Exhibit E attached hereto Closing Date, (the “Due Diligence Items”).
5.2 Purchaser shall have forty-five (45) days from and after the Effective Date (the hereinafter “Investigation Period”) to conduct), at Purchaser’s expense, economic feasibility studies, verify business and accounting records, test the Projects for environmental contamination (including but not limited to non-invasive Phase I environmental inspections) and any improvements thereon, and to otherwise study the Projects. Any environmental inspections or testing conducted on the Projects Buyer shall be referred entitled to herein examine the company documents of the Seller pertaining to the Contracts to be assigned to the Buyer hereunder. In addition, Buyer may perform other investigative techniques as the “Environmental Diligence.” Sellers and Purchaser hereby agree and acknowledge that no Phase II environmental inspections or other invasive inspections or sampling of soil or materials, including, without limitation, construction materials, either it deems necessary as part of its due diligence work. Such documents and investigative techniques shall include but not be limited to the Phase I inspections or any other inspectionfollowing:
(a) All written monitoring Contracts with subscribers, shall be performed at any Project without the prior written consent including all amendments and modifications thereof;
(b) A schedule of the Seller for such Project. If consented to by such Sellernames, the proposed scope addresses and telephone numbers of work and the party who will perform the work shall be subject to such Seller’s review and approval in its sole discretion. Upon any Seller’s request, Purchaser shall deliver to such Seller copies of any Phase II or other environmental report to which such Seller consents as provided above. From and after the Effective Date, and upon reasonable prior notice to Sellers, and provided Purchaser does not interfere with the current operations on the Projects, or the rights of other occupants thereon, Purchaser shall have reasonable access all contract subscribers whose Contracts are being transferred;
(c) All financial information pertaining to the Projects Contracts to be transferred hereunder, including payment histories of such Contracts;
(d) All original electrical permits for the installation of the security systems; and
(e) Telephone inquiries and local on-site visits, prior to Closing in order to conduct verify the tests and studies, and Sellers shall otherwise reasonably cooperate with Purchaser in conducting the tests and studies. Purchaser hereby agrees to indemnify and hold Sellers harmless from all costs, losses, damages and expenses, including reasonable attorneys’ fees, arising directly or indirectly as a result accuracy of such entry including, but not limited to, the activities, inspections and investigations by Purchaser or its agents or representatives and the negligent acts or omissions of Purchaser or said agents or representatives. In the event that any portion of any Project is damaged, disturbed or altered by virtue of Purchaser’s investigations or due diligence activities, Purchaser will, at its sole cost and expense, repair any damage to such Project caused by Purchaser’s activities upon the Project to the same condition as existed immediately prior to such damage occurring on the Project. Upon request of Purchaser and agreement by Seller, the Closing Date shall be extended to accommodate the provisions of these Sections 5.1 and 5.2. Upon Purchaser’s request for a Phase II investigation and the Seller’s consent to such Phase II investigation, the Investigation Period shall be extended an additional thirty (30) daysrepresentations and warranties. During such additional thirty (30) day period, the Investigation Period shall only be extended for the Community in which such Phase II is being performed and such extension shall only be for purposes of the Phase II investigation and the Purchaser shall have waived all other diligence with respect to such Community. All of the obligations of Purchaser under this Section 5.2 shall survive both the consummation of the sale contemplated hereunder and any earlier termination of this Agreement.
5.3 If Purchaser is not satisfied, in its sole and absolute discretion, with the condition of the Projects, then at any time prior Prior to the expiration of the Investigation Period, Purchaser shall have the right to terminate this Agreement with respect to all of the Projects by giving Buyer, in Buyer’s sole and absolute discretion, may provide written notice to Sellers prior to of Buyer’s cancellation of this Agreement. In the expiration event Buyer provides written notice of the Investigation PeriodBuyer’s cancellation of this Agreement, and no party shall have any further obligations under this Agreement except for those obligations that expressly survive termination as set forth herein, and the Initial Deposit (including all interest accrued thereon), shall be promptly returned by the Title Company to Purchaser. Thereafter, the parties to this Agreement shall have be null and void and of no further responsibilities or obligations to one another except for those that expressly survive termination as set forth hereineffect whatsoever. However, if Purchaser does not elect to terminate In the event no notice of cancellation is given by Buyer within forty five (45) days from the execution of this Agreement in accordance with its rights hereunder, then, except as may otherwise be provided for hereinAgreement, this Agreement shall remain in full force and effect and effect; provided that Buyer’s obligations pursuant to Section 5.2 hereof shall continue until the parties date which is two (2) years after the date of this Agreement.
5.2 Buyer agrees that, for a period of two (2) years after the date of this Agreement, Buyer shall proceed not disclose to the Closings. Except as set forth in this Section 5.3, Section 4.1 above and Section 12.1, the parties hereby agree and acknowledge that this is an “all any person or none” transaction with respect to the Projects. Notwithstanding the foregoing, in the event Purchaser is not satisfied, in its sole and absolute discretion, with the condition of entity for any reason any of the Projects solely as a result information, data or records provided by Seller or any of the Purchaser’s Environmental Diligence, Purchaser may the terminate this Agreement solely with respect to such Project or Projects by delivery of written notice to Sellers, whereupon either all of the Initial Deposit or a prorated portion of the Initial Deposit, based upon the allocated values of those non-terminated Projects as provided in the allocation schedule prepared pursuant to Section 2.2 herein (the “Prorated Deposit”), shall be returned to Purchaser by the Title Company, and Sellers and Purchaser shall proceed to Closing with respect to the non-terminated Projects.
5.4 Purchaser agrees that any information obtained by Purchaser, its agents, employees, contractors, consultants, representatives or partners, officers, directors, prospective lenders and accountantsemployees, attorneys, other professional advisors agents or prospective investors of Purchaser (collectively referred representatives to herein as the “Permitted Outside Parties”) in conduct of the due diligence conducted by Purchaser during the Investigation Period shall be treated as confidential and shall be used only Buyer pursuant to evaluate the acquisition of the Projects from Sellers. Purchaser further acknowledges, on behalf of itself and the Permitted Outside Parties, that the Due Diligence Items obtained by, for or on behalf of Purchaser, and other information relating to all leases, subleases, occupancy and tenancy agreements and written commitments to lease currently in effect and covering any portion of the Projects this Section 5 (the “Tenant LeasesConfidential Information”) are proprietary and confidential in nature and neither Purchaser nor ). Buyer may not use the Permitted Outside Parties shall divulge Confidential Information for any purpose other than the contents of such Due Diligence Items prior to the Closings, except as required by applicable law or order of court or governmental agency having jurisdiction.
5.5 If Purchaser does not terminate this Agreement prior to the expiration evaluation of the Investigation Period, Purchaser shall, on or before the expiration of the Investigation Period, give notice, in writing, to Sellers as to which contracts, including all equipment leases, service, utility, supply, maintenance, concession and employment contracts, agreements, and other continuing contractual obligations (collectively, the “Project Contracts”) Purchaser intends to assume at the Closings and which Project Contracts need to be terminated transactions contemplated by Sellers prior to Closing. If Purchaser fails to give Sellers timely notice of the Project Contracts it wishes to assume, all of the Project Contracts shall be deemed assumed by Purchaser with respect to periods from and after the Closings. Such Project Contracts shall be assigned to Purchaser pursuant to an Assignment of Leases and General Assignment at the Closings in the form attached hereto as Exhibit F. Notwithstanding anything herein to the contrary, Purchaser and Sellers hereby agree that the contracts listed on Exhibit G attached hereto shall not be assigned by Sellers and assumed by Purchaser at the Closings (the “Sun Exclusive Contracts”)this Agreement.
Appears in 1 contract
