Common use of Purchaser’s Due Diligence Clause in Contracts

Purchaser’s Due Diligence. At the Closing, Purchaser shall have ------------------------- delivered to Seller a certificate (the "Due Diligence Certificate") to the effect that: (i) Purchaser and its employees, agents and accounting and legal representatives have been afforded reasonable access to the books, records, key personnel, facilities and other things reasonably related to the Purchased Assets and the Business; (ii) Purchaser and its employees, agents and accounting and legal representatives have been given a reasonable opportunity to ask questions relating to the Purchased Assets and the Business and to receive answers thereto; (iii) Purchaser has completed its business, accounting and legal due diligence review of the Purchased Assets and the Business; and (iv) in completing the transactions contemplated in accordance with this Agreement, Purchaser has not and is not relying on representations and warranties of Seller which are not expressly stated in this Agreement; provided, however, that notwithstanding the investigation conducted by Purchaser and any knowledge of facts determined or determinable by the Purchaser pursuant to such investigation, Purchaser has the right to rely upon the representations, warranties, covenants and agreements of Seller and Principals contained in this Agreement except to the extent that (i) Purchaser had, prior to Closing, actual knowledge of Seller's and the Principals' breach of any such representation or warranty; (ii) neither Seller nor either of the Principals had knowledge of such breach ; and (iii) Purchaser intentionally withheld such knowledge from Seller and the Principals. For purposes of the foregoing, (i) Purchaser's knowledge shall be deemed to include the knowledge of only Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxx and Xx Xxxxxx, and (ii) Seller's knowledge shall be deemed to include the knowledge of the persons named in Section 12.kk. hereof.

Purchaser’s Due Diligence. At 8.01 In consideration of the ClosingPurchaser simultaneously herewith depositing with the Escrow Agent the Due Diligence Fee (which shall be payable to the Seller in accordance with Sections 3.02, 8.03, and 14.01), commencing on the date of this Agreement and expiring on December 1, 2004 or such earlier date as the Purchaser shall have ------------------------- delivered waived its rights to Seller a certificate terminate this Agreement under Section 8.03 (which right shall conclusively be deemed to have been waived by making the Contract Deposit pursuant to paragraph (b) of Section 3.02) (the "“Due Diligence Certificate"Period”), the Purchaser (and the Purchaser’s accountants, engineers and other consultants) may, subject to the effect that: terms and provisions of this Article 8 and upon at least two Business Days’ notice to the Seller, (i) Purchaser and its employees, agents and accounting and legal representatives have been afforded reasonable access subject to the booksrights of tenants of the Premises, recordsenter upon the Real Property for the purpose of making such inspections and surveys thereof as the Purchaser may desire, key personnel, facilities and other things reasonably related to the Purchased Assets and the Business; (ii) Purchaser and its employees, agents and accounting and legal representatives have been given a reasonable opportunity to ask questions relating to review the Purchased Assets and the Business and to receive answers thereto; (iii) Purchaser has completed its business, accounting and legal due diligence review of the Purchased Assets and the Business; and (iv) in completing the transactions contemplated in accordance with this Agreement, Purchaser has not and is not relying on representations and warranties of Seller which are not expressly stated in this Agreement; provided, however, that notwithstanding the investigation conducted by Purchaser and any knowledge of facts determined or determinable by the Purchaser pursuant to such investigation, Purchaser has the right to rely upon the representations, warranties, covenants and agreements of Seller and Principals contained in this Agreement except to the extent that (i) Purchaser had, prior to Closing, actual knowledge of Seller's and the Principals' breach of any such representation or warranty; (ii) neither Seller nor either of the Principals had knowledge of such breach ; Leases and (iii) inspect, during regular business hours at the offices of the managing agent of the Real Property, the Contracts and the other books and records of such managing agent relating to the operation, leasing and maintenance of the Real Property. Nothing in this Section 8.01 shall be construed to permit the Purchaser intentionally withheld or any other person on behalf of the Purchaser to inspect or review any (x) income tax returns or files relating to income taxes of the Seller or any partner, officer, member, agent or other principal of the Seller or (y) reports, correspondence, memoranda or compendia of information prepared by counsel for the Seller which may be the subject of any privilege or by any other persons in contemplation of litigation or any other official proceeding or hearing, except real estate tax certiorari (or equivalent) proceedings. The Seller reserves the right to have one or more representatives present at any such knowledge inspection, test, examination or walk-through of the Real Property and at any examination of the Leases, Contracts or books and records. No test or physical penetration of any portion of the Real Property may be conducted without the prior approval of the Seller, which approval shall not be unreasonably withheld. The Purchaser shall maintain and deliver to Seller certificates of comprehensive liability and property damage insurance in a coverage amount of not less than one million ($1,000,000) dollars per occurrence and underwritten by a carrier reasonably acceptable to the Seller, naming the Seller, its members and managing agent as insureds against any damage, injury, expenses and other liabilities which the undersigned may incur arising out of any negligence or misconduct by any of the Purchaser’s representatives while present at the Real Property to perform any activity permitted under this Section 8.01. The Purchaser shall promptly pay the Seller the Seller’s cost to repair any damage to any Buildings and other Improvements caused by or resulting from activities associated with such representatives (excluding, however, conditions merely discovered by the Purchaser) and restore the damaged property to its condition immediately prior to such activities and shall indemnify Seller against any related costs. During the Due Diligence Period, the Seller shall make available to the Purchaser and its representatives copies of the Leases, the Contracts, such Certificate(s) of Compliance or Occupancy and Residential Use Permits for the Buildings and other Improvements as are in the possession of the Seller and its managing agent, the Principals. For purposes most recent real estate tax bills for the Real Property, such plans and drawings of the foregoingBuildings and other Improvements as are in the possession of the Seller and its managing agent and, subject to the foregoing provisions of this Section 8.01, such other books and records of the Property, including, without limitation, the items set forth in Schedule K attached hereto, as are in the possession of the Seller and its managing agent. (ia) Purchaser's knowledge All information respecting the Real Property obtained pursuant to Section 8.01 or other source not in the public domain prior to the Closing by the Purchaser or any other person acting on behalf of the Purchaser shall be deemed held in the strictest confidence and shall not be revealed to include any person (other than persons retained or employed by Purchaser, the knowledge Purchaser’s consultants and lenders, who have a need to know such information) except pursuant to subpoena or court or other competent authority’s order. If the Purchaser or any person acting on behalf of only Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxx and Xx Xxxxxx, and (ii) Seller's knowledge the Purchaser shall be deemed made the subject of a subpoena or the order of any court or other competent authority’s directing the Purchaser or such other person to include divulge any such information, the knowledge Purchaser shall notify the Seller of such subpoena or order promptly after being served with the same to permit the Seller to contest such subpoena or court order or to seek such other protective relief as the Seller may deem desirable. The Purchaser shall instruct each person to whom the Purchaser imparts any such information about the Real Property pursuant to this Article 8 to be bound by the terms and provisions of this Section 8.02. (b) All duly authorized representatives of the persons named Purchaser who may participate in the Purchaser’s inspections and other due diligence shall be instructed by the Purchaser to be bound by the terms and provisions of this Section 8.02. (c) Provided that the Seller is not in material breach of this Agreement and the Purchaser has terminated this Agreement in accord with Section 8.03, the Purchaser shall deliver to the Seller, promptly after receipt by the Purchaser, copies of all title abstracts and reports, surveys, inspection and test reports and environmental and engineering reports with respect to the Real Property that may be prepared for the Purchaser by third-party engineers, providers, consultants or contractors. All such copies shall be delivered without representation or warranty and may not be relied upon by the Seller. (d) The Purchaser shall not request any governmental authority to inspect any portion of the Real Property but the Purchaser may request from appropriate agencies information concerning zoning, compliance with codes or other ordinances and certificates of occupancy. 8.03 The Purchaser may terminate this Agreement for any reason on or before the expiration of the Due Diligence Period, time being of the essence, by giving the Seller notice of such termination, time being of the essence. If the Purchaser shall so terminate this Agreement pursuant to this Section 8.03 and the Seller shall not have made an untrue or incomplete representation (as defined in Section 12.kk. hereof7.04) or other breach or default hereunder which shall have formed the basis of such termination, then the Purchaser shall direct the Escrow Agent to disburse the Due Diligence Fee of seventy-five thousand and no/100 ($75,000.00) dollars to the Seller in consideration of the Seller’s having removed the Property from the market for the duration of the Due Diligence Period and the balance of the Escrow Fund to the Purchaser (without the requirement of obtaining consent of the Seller and notwithstanding contrary instruction from the Seller) and neither party shall have any further obligation or claim against the other arising out of this Agreement (except for such claims as the Seller may have by reason of any covenant or condition set forth in Sections 8.01 or 8.

Purchaser’s Due Diligence. At the Closing, Purchaser shall have ------------------------- delivered thirty (30) days from the date hereof to Seller a certificate conduct such due diligence as Purchaser deems necessary with respect to the Property (the "Due Diligence CertificatePeriod") to ). During the effect that: (i) Due Diligence Period, Seller will permit Purchaser and its employees, agents and accounting and legal representatives have been afforded reasonable access to the booksProperty on reasonable notice by Purchaser, recordsduring normal business hours, key personneland will make available to Purchaser for review and copying at Purchaser's expense, facilities such written information concerning the Property as Seller has in its possession or under its control including, to the extent in existence and other things reasonably within the files of Seller or the property manager, those items set forth in Schedule I attached hereto. Purchaser agrees to indemnify, protect, defend and save Seller harmless from any and all claims, actions, liabilities, damages, costs or causes of action of any kind, nature or description, including attorneys' fees, as arise because of or as are related to Purchaser's activities during the Purchased Assets Due Diligence Period. Notwithstanding anything to the contrary contained in this Paragraph 3.5, Purchaser acknowledges and agrees that it shall not make or perform any physical tests or procedures on, about or to the Property including, but not limited to, soil sampling, soil boring, material sampling, excavations, and the Business; like without Seller's prior written consent, which consent may be granted or withheld by Seller in its sole and absolute discretion. Seller shall notify Purchaser of its decision to grant or to withhold its consent within five (ii5) business days following Seller's receipt of Purchaser's request for permission to perform any physical test or procedure. In the event Seller withholds Its consent to Purchaser and its employees, agents and accounting and legal representatives have been given a reasonable opportunity to ask questions relating to the Purchased Assets and the Business and to receive answers thereto; (iii) Purchaser has completed its business, accounting and legal due diligence review of the Purchased Assets and the Business; and (iv) in completing the transactions contemplated in accordance with this Agreementperforming any physical test or procedure, Purchaser has not and is not relying on representations and warranties of Seller which are not expressly stated in this Agreement; provided, however, that notwithstanding the investigation conducted by Purchaser and any knowledge of facts determined or determinable by the Purchaser pursuant to such investigation, Purchaser has shall have the right to rely upon cancel this Agreement. Provided Seller has granted its consent to Purchaser performing any physical test or procedure, if Purchaser's agents go on the representationsPremises and perform labor thereon such as soil boring or environmental inspections, warranties, covenants Purchaser shall provide Seller with evidence of workman's compensatxxx xxx xiability insurance satisfactory to Seller to protect Seller from any liability concerning such activities. The results of all tests or procedures shall be confidential and agreements of Seller and Principals contained in this Agreement except shall not be disclosed by Purchaser to the extent that (i) Purchaser had, prior to Closing, actual knowledge of any third party without Seller's and the Principals' breach of any such representation or warranty; (ii) neither Seller nor either of the Principals had knowledge of such breach ; and (iii) Purchaser intentionally withheld such knowledge from Seller and the Principals. For purposes of the foregoing, (i) Purchaser's knowledge shall be deemed to include the knowledge of only Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxx and Xx Xxxxxx, and (ii) Seller's knowledge shall be deemed to include the knowledge of the persons named in Section 12.kk. hereofprior written consent.

Purchaser’s Due Diligence. At 13.1 The Vendor will, within 5 Business Days after the Closing, execution and delivery of this Agreement by the Purchaser shall have ------------------------- delivered to Seller a certificate and the Vendor (the "Due Diligence Certificate") ”Delivery Date”), deliver to the effect that: (i) Purchaser and its employeesthe following, agents and accounting and legal representatives have been afforded reasonable access in each case to the booksextent within the possession or control of the Vendor: (a) list of all major consultants and related contract particulars; (b) copies of all Permits; (c) copies of Contract Plans and Specifications in hand as of the Acceptance Date; (d) any surveys, recordsbuilding plans, key personneldevelopment plans, facilities site plans, floor plans, building condition reports, expense budgets, hazardous materials assessments and other things reasonably related to the Purchased Assets and the Business; (ii) Purchaser and its employees, agents and accounting and legal representatives have been given a reasonable opportunity to ask questions environmental reports relating to the Purchased Assets Property and in the Business and to receive answers thereto; (iii) Purchaser has completed its business, accounting and legal due diligence review possession or control of the Purchased Assets Vendor, (collectively, the “Due Diligence Documents”). 13.2 The Vendor will further provide such documents and information relating to the Business; Property in the possession or control of the Vendor and (iv) that are reasonably requested by the Purchaser, within 5 days of such request, or whenever, before the Completion Date, the Vendor is in completing control or possession of new Due Diligence Documents that have not been previously provided to the transactions contemplated Purchaser. 13.3 The Purchaser agrees to maintain the confidentiality, in accordance with Section 47, of all such Due Diligence Documents so delivered, and to destroy or return all copies of the same to the Vendor forthwith, upon demand, if the Purchaser’s Condition is not satisfied or waived within the time or times provided therein or if the Purchaser fails to complete its purchase of the Property. 13.4 From time to time after the date of this Agreement, Purchaser has upon reasonable advance notice to the Vendor (being not and is not relying on representations and warranties less than two (2) Business Days), and, if requested by the Vendor, in the presence of Seller which are not expressly stated in this Agreement; providedthe Vendor or its designated representative, however, that notwithstanding the investigation conducted by Purchaser and their respective agents, employees and consultants will be entitled to enter onto and into the Lands to carry out inspections (the “Inspections”), provided that the Inspections will be carried out during normal business hours, will not unduly interfere with construction, development or operation on Lands and will not injure the Lands. The Purchaser will be responsible for and will indemnify the Vendor for all damages, costs, expenses and other adverse consequences of the Purchaser’s actions in conducting the Inspections. The Purchaser will not materially disturb or materially interfere with the activities of the Vendor or any knowledge other permitted user of facts determined or determinable by any portion of the Lands. 13.5 The Purchaser hereby waives any requirement for the Vendor to provide to the Purchaser pursuant a “site disclosure statement” for the Property under the Environmental Management Act (British Columbia) or any regulation in respect thereto. 13.6 The Vendor will execute, or cause to such investigationbe executed, Purchaser has the right to rely upon the representations, warranties, covenants and agreements of Seller and Principals contained in this Agreement except return to the extent that Purchaser or the Purchaser’s Solicitors within five (i5) Business Days of the Purchaser’s written request, all consents or letters of authority which may be necessary for the Vendor to execute in order for the Purchaser hadto conduct such due diligence searches or cause inspections or tests to be made with respect to the purchase of the Property as the Purchaser determines to be necessary, acting reasonably. The Purchaser will copy the Vendor on any and all inquiries made to the City. 13.7 The Purchaser may, with prior written notice to Closingthe Vendor, actual knowledge discuss the Property and any reports rendered in respect thereof, with such of Seller's the Vendor’s consultants as the Purchaser may reasonably request from time to time, and the Principals' breach of any Vendor will use commercially reasonable efforts to assist the Purchaser in arranging meetings between such representation or warranty; (ii) neither Seller nor either of the Principals had knowledge of such breach ; and (iii) Purchaser intentionally withheld such knowledge from Seller consultants and the Principals. For purposes of the foregoing, (i) Purchaser's knowledge shall be deemed to include the knowledge of only Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxx and Xx Xxxxxx, and (ii) Seller's knowledge shall be deemed to include the knowledge of the persons named in Section 12.kk. hereof.

Purchaser’s Due Diligence. At the Closing, Purchaser shall have ------------------------- delivered to Seller a certificate (the "Due Diligence Certificate") 5.1.1 Subject to the effect that: (i) provisions of this Section, Purchaser and its agents, employees, agents consultants, inspectors, appraisers, engineers and accounting contractors (collectively “Purchaser’s Representatives”) shall have the right, through the Closing Date, from time to time, upon the advance notice required pursuant to this Section 5.1, to enter upon and legal representatives have been afforded reasonable access pass through the Property during normal business hours to examine and inspect the same. Notwithstanding any such inspection, or anything to the bookscontrary contained herein, recordsPurchaser’s obligations hereunder shall not be limited or otherwise affected as a result of any fact, key personnelcircumstance or other matter of any kind discovered following the date hereof in connection with any such inspection, facilities access or otherwise; it being agreed that Seller is permitting Purchaser such right of inspection and other things reasonably related access as a courtesy to Purchaser in its preparation for taking title to the Purchased Assets and Property. Without limiting the Business; (ii) Purchaser and its employees, agents and accounting and legal representatives have been given a reasonable opportunity to ask questions relating to the Purchased Assets and the Business and to receive answers thereto; (iii) Purchaser has completed its business, accounting and legal due diligence review of the Purchased Assets and the Business; and (iv) in completing the transactions contemplated in accordance with this Agreement, Purchaser has not and is not relying on representations and warranties of Seller which are not expressly stated in this Agreement; provided, however, that notwithstanding the investigation conducted by Purchaser and any knowledge of facts determined or determinable by the Purchaser pursuant to such investigation, Purchaser has the right to rely upon the representations, warranties, covenants and agreements of Seller and Principals contained in this Agreement except to the extent that (i) Purchaser had, prior to Closing, actual knowledge of Seller's and the Principals' breach of any such representation or warranty; (ii) neither Seller nor either of the Principals had knowledge of such breach ; and (iii) Purchaser intentionally withheld such knowledge from Seller and the Principals. For purposes generality of the foregoing, (i) Purchaser's knowledge Purchaser agrees that it shall be deemed not have the right to include terminate this Agreement or obtain a reduction of the knowledge Purchase Price as a result of only Xxxxxxx X. Xxxxxxany such fact, Xxxxx Xxxxxx and Xx Xxxxxxcircumstance or other matter so discovered (including, without limitation, relating to the physical condition of the Property, the operations of the Property or otherwise), except as provided in Section 5.1.4 below and (ii) Purchaser shall have no right to terminate this Agreement or obtain a return of the Deposit except as expressly provided in this Agreement. 5.1.2 In conducting any inspection of the Property or otherwise accessing the Property, Purchaser shall at all times comply with all laws and regulations of all applicable governmental authorities, and neither Purchaser nor any of Purchaser’s Representatives shall (i) contact or have any discussions with any of Seller's knowledge ’s employees, agents or representatives, or with any tenants (including, without limitation, having any contacts whatsoever with tenants, including but not limited to telephone conversations or electronic mail messages) at, or contractors providing services to, the Property, unless in each case Purchaser obtains the prior written consent of Seller (which may be given via electronic mail), it being agreed that all such contacts or discussions shall, pending any such approval, be directed to Xxxxx Xxxx via electronic mail (at xxxxx@xxxxxxxxxx.xxx), (ii) interfere with the business of Seller conducted at the Property or disturb the use or occupancy of any tenant or occupant of the Property or (iii) damage the Property. In conducting any inspection of the Property or otherwise accessing the Property, Purchaser and Purchaser’s Representatives shall at all times comply with, and shall be subject to, the rights of the tenants under the Leases (and any persons claiming by, under or through such tenants). Seller may from time to time establish reasonable rules of conduct for Purchaser and Purchaser’s Representatives in furtherance of the foregoing, and Purchaser shall comply with all of Seller’s requirements regarding entry upon the Property. Purchaser shall schedule and coordinate all inspections, including, without limitation, any environmental tests, and other access with Seller and shall give Seller at least two (2) Business Days’ prior notice thereof. Seller shall be entitled to have a representative present at all times during each such inspection or other access. Purchaser agrees to pay to Seller on demand the cost of repairing and restoring any damage which Purchaser or Purchaser’s Representatives shall cause to the Property. All inspection fees, appraisal fees, engineering fees and other costs and expenses of any kind incurred by Purchaser or Purchaser’s Representatives relating to such inspection and its other access shall be at the sole expense of Purchaser. Purchaser shall keep all information obtained during its inspections and access to the Property confidential. If the Closing shall not occur for any reason whatsoever, Purchaser shall: (A) upon written request of Seller, promptly deliver to Seller, at no cost to Seller, and without representation or warranty, copies of all non-proprietary tests, reports and inspections of the Property, made and conducted by Purchaser or Purchaser’s Representatives or for Purchaser’s benefit that are in the possession or control of Purchaser or Purchaser’s Representatives; (B) promptly return to Seller copies of all due diligence materials delivered by Seller to Purchaser; and (C) promptly destroy all copies and abstracts of the materials referenced in (A) and (B) above. Purchaser and Purchaser’s Representatives shall not be permitted to conduct borings of the Property or drilling in or on the Property, or any other invasive, intrusive or destructive testing in connection with the preparation of an environmental audit or in connection with any other inspection of the Property without the prior written consent of Seller, which Seller may give or withhold in its sole discretion (and, if such consent is given, Purchaser shall be obligated to pay to Seller on demand the cost of repairing and restoring any damage as aforesaid). This Section 5.1.2 shall survive the Closing or any termination of this Agreement. 5.1.3 Prior to conducting any physical inspection or testing at the Property, Purchaser and Purchaser’s Representatives shall obtain, and during the period of such inspection or testing shall maintain, at their expense: (i) commercial general liability (“CGL”) insurance, issued on a form at least as broad as Insurance Services Office (“ISO”) Commercial General Liability Coverage “occurrence” form CG 00 01 10 01 or another “occurrence” form providing equivalent coverage, including contractual liability and personal injury liability coverage, with limits of not less than Two Million Dollars ($2,000,000) for any one occurrence and Five Million Dollars ($5,000,000) in the aggregate; (ii) comprehensive automobile liability insurance (covering any automobiles owned or operated by Purchaser or Purchaser’s Representatives) issued on a form at least as broad as ISO Business Auto Coverage form CA 00 01 07 97 or other form providing equivalent coverage; (iii) worker’s compensation insurance or participation in a monopolistic state workers’ compensation fund, and (iv) employer’s liability insurance or (in a monopolistic state) Stop Gap Liability insurance. Such automobile liability insurance shall be in an amount not less than One Million Dollars ($1,000,000) for each accident. Such worker’s compensation insurance shall carry minimum limits as defined by the law of the jurisdiction in which the Property is located (as the same may be amended from time to time). Such employer’s liability insurance shall be in an amount not less than One Million Dollars ($1,000,000) for each accident, One Million Dollars ($1,000,000) disease-policy limit, and One Million Dollars ($1,000,000) disease-each employee. Seller, and its property manager, shall be covered as additional insureds on the CGL and automobile liability insurance policies with respect to liability arising out of the named insured’s acts or omissions relating to the Property. The insurer and the terms and conditions of all the foregoing policies shall be acceptable to Seller. Prior to making any entry upon the Property, Purchaser shall furnish to Seller a certificate of insurance evidencing the foregoing coverages, which certificate of insurance shall be in form and substance satisfactory to Seller. 5.1.4 Purchaser shall have until 5:00 p.m. (Arizona time) April 28, 2017 (the “Study Period”) within which to determine, in its sole discretion, whether all matters related to the Property are satisfactory to Purchaser. On or before the expiration of the Study Period, Purchaser, in its sole and absolute discretion, for any reason or no reason whatsoever, shall have the right to proceed with this Agreement by giving written notice thereof to Seller (the “Notice to Proceed”). In the event that Purchaser does not deliver such Notice to Proceed, Purchaser will be deemed to include have elected to terminate this Agreement, in which event the knowledge Escrow Agent shall return the Deposit and all interest thereon to Purchaser, whereupon both parties shall be released from all further obligations and liability under this Agreement, except those obligations expressly stated to survive such termination. 5.1.5 Purchaser hereby agrees to indemnify, defend, and hold harmless Seller, its partners, members, affiliates, property manager, and their respective officers, directors, agents, employees, and representatives (collectively, the “Indemnified Parties”) from and against any and all liens, claims, or damages of any kind or nature, including any demands, actions or causes of action, assessments, losses, costs, expenses, liabilities, interest and penalties, and reasonable attorneys’ fees suffered, incurred, or sustained by any of the persons named in Indemnified Parties directly caused by Purchaser or Purchaser’s Representatives with respect to any due-diligence activities at the Property pursuant to this Agreement (collectively, “Losses”), except any arising from the discovery of preexisting conditions (so long as Purchaser does not exacerbate any such condition). This Section 12.kk. hereof5.1.5 shall survive the Closing or any termination of this Agreement.

Purchaser’s Due Diligence. At Purchaser will be allowed to conduct the Closingfollowing Due Diligence: 3.1 For a period commencing on the Acceptance Date and ending at 5:00 p.m., Brooklyn Park, Minnesota time, on the date that is sixty (60) days after the Acceptance Date (the “Review Period”), Purchaser shall have ------------------------- delivered to Seller a certificate (the "Due Diligence Certificate") to the effect thatright to: (ia) Purchaser and review the Deliverables; (b) perform, at its employeessole cost, agents and accounting and legal representatives have been afforded reasonable access to the booksphysical inspections, records, key personnel, facilities environmental review and other things reasonably related to the Purchased Assets and the Businessdue diligence; (iic) obtain all approvals Purchaser and its employees, agents and accounting and legal representatives have been given a reasonable opportunity to ask questions relating to the Purchased Assets and the Business and to receive answers thereto; (iii) Purchaser has completed its business, accounting and legal due diligence review of the Purchased Assets and the Businessdeems necessary; and (ivd) to decide, in completing Purchaser’s sole and absolute discretion, whether the transactions contemplated Property is satisfactory. Within five (5) Business Days of the Acceptance Date, Seller will deliver any Deliverables in accordance with Seller’s possession to Purchaser. If this Agreement is terminated for any reason, Xxxxxxxxx agrees to return all hard copies of the Deliverables to Seller within five (5) Business Days of such termination. 3.2 During the pendency of this Agreement, Purchaser has not or its designated representatives shall, at reasonable times, have access to the Property and is not relying on representations other due diligence materials to conduct, at Purchaser’s sole cost and warranties of Seller which are not expressly stated in this Agreementexpense, its Due Diligence with respect to the Property; provided, however, that notwithstanding the investigation conducted Purchaser will: (a) cause any consultants engaged by Purchaser that may enter upon the Property for purposes of Purchaser’s Due Diligence to obtain commercial general liability insurance with coverage limits of no less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate for bodily injury, death and property damage liability; (b) indemnify, defend and hold Seller harmless from and against all costs, expenses, losses, claims, damages and/or liabilities arising from Purchaser’s or any knowledge of facts determined its agents’, contractors’ or determinable by representatives’ negligence or misconduct in connection with Purchaser’s inspection of the Purchaser pursuant Property; (c) promptly repair any damage resulting from any such inspections and restore the Property to its condition prior to such investigationinspections; (d) not permit any Phase II or otherwise intrusive environmental testing; or (e) not permit any inspections, investigations or other due diligence activities to result in any Liens being filed against the Property and will, at its sole cost and expense, promptly discharge of record any such Liens that are so filed or recorded. Purchaser’s liabilities under this Section shall survive the Closing or earlier termination of this Agreement. 3.3 On or before the expiration of the Review Period, Purchaser has the right for any reason or no reason to rely terminate this Agreement. If Purchaser notifies Seller of the termination of this Agreement, this Agreement shall terminate upon the representationsdate of Purchaser’s notification of the same to Seller, warrantiesPurchaser shall be entitled to the return of the Xxxxxxx Money and neither party will have any further rights against the other except for obligations under this Agreement that expressly survive termination hereof. 3.4 On or before the end of the Review Period, covenants Purchaser shall advise Seller, in writing, of any Service Contracts that Purchaser desires to assume as of the Closing, and agreements any such Service Contracts so assumed shall be assigned by Seller to Purchaser at the Closing. Failure by Purchaser to notify Seller prior to the end of the Review Period shall constitute an election by Purchaser to assume all of the Service Contracts. 3.5 Within three (3) Business Days of the Acceptance Date, Purchaser shall, at Seller’s cost and expense, order a commitment for the Owner’s Policy (the “Title Commitment”) from Title Company and provide a copy to Seller upon Purchaser’s receipt thereof. Purchaser may, at its cost and Principals contained expense, obtain a survey of the Property, but if it chooses to do so, for purposes of the Title Review Period, Purchaser must order said survey within ten (10) Business Days of the Acceptance Date. No later than seven (7) Business Days following Purchaser’s receipt of the Title Commitment and any survey timely ordered by Xxxxxxxxx (the “Title Review Period”), Purchaser will deliver to Seller, in writing, any objections to the Title Commitment and/or survey (“Objections”). Should Purchaser fail to timely notify Seller of any Objections, Purchaser will be deemed to have waived any such Objections, except any Required Removal Items. 3.6 If Purchaser notifies Seller within the Title Review Period of Objections, then within five (5) Business Days after Seller’s receipt of Purchaser’s notice (“Seller’s Title Response Period”), Seller will notify Purchaser in writing (“Seller’s Title Response Notice”) of the Objections that Seller agrees to satisfy on or prior to the Closing, at Seller’s sole cost and expense, and of the Objections that Seller cannot or will not satisfy. Notwithstanding the foregoing, Seller will, in any event, be obligated to cure all (a) Liens against the Property; or (b) Liens that have been voluntarily placed against the Property by Seller after the Acceptance Date and that will not otherwise be satisfied on or before the Closing ((a) and (b) collectively, the “Required Removal Items”). If Seller chooses not to satisfy all or any of the Objections that Seller is not obligated to satisfy and to which Purchaser was entitled to object, Seller may either (aa) notify Purchaser thereof within Seller’s Title Response Period, or (bb) not respond to Purchaser. In that case, Purchaser has the option, to be exercised within three (3) Business Days following the sooner of (aaa) Purchaser’s receipt of Seller’s Title Response Notice, or (bbb) the expiration of Seller’s Title Response Period, of either (x) terminating this Agreement by giving written notice of termination to Seller, whereupon this Agreement will be terminated without any obligations surviving hereunder, except those expressly stated to survive termination, and the Xxxxxxx Money shall be returned to Purchaser, or (y) electing to close, in which case Purchaser will be deemed to have waived such Objections and such Objections will become “Permitted Exceptions”. If Purchaser does not terminate this Agreement pursuant to this Section 3, there is a presumption that Purchaser has approved all of the items set forth in this Section 3 and this Agreement will remain in full force and effect as provided for in this Agreement except to (unless the extent that (i) Purchaser had, prior to Closing, actual knowledge of Seller's and Agreement is otherwise terminated in accordance with the Principals' breach of any such representation or warranty; (ii) neither Seller nor either of the Principals had knowledge of such breach ; and (iii) Purchaser intentionally withheld such knowledge from Seller and the Principals. For purposes of the foregoing, (i) Purchaser's knowledge shall be deemed to include the knowledge of only Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxx and Xx Xxxxxx, and (ii) Seller's knowledge shall be deemed to include the knowledge of the persons named in Section 12.kk. terms hereof).

Purchaser’s Due Diligence. At the Closing, Purchaser shall have ------------------------- delivered to Seller a certificate (the "Due Diligence Certificate") 5.1.1 Subject to the effect that: (i) provisions of this Section 5.1, Purchaser and its agents, employees, agents consultants, inspectors, appraisers, engineers and accounting contractors (collectively “Purchaser's Representatives”) shall have the right, through the Closing Date, from time to time, upon the advance notice required pursuant to this Section 5.1, to enter upon and legal representatives have been afforded reasonable access pass through the Property during normal business hours to examine and inspect the same. Notwithstanding any such inspection, or anything to the bookscontrary contained herein, recordsPurchaser's obligations hereunder shall not be limited or otherwise affected as a result of any fact, key personnelcircumstance or other matter of any kind discovered following the date hereof in connection with any such inspection, facilities access or otherwise; it being agreed that Seller is permitting Purchaser such right of inspection and other things reasonably related access as a courtesy to Purchaser in its preparation for taking title to the Purchased Assets and Property. Without limiting the Business; (ii) Purchaser and its employees, agents and accounting and legal representatives have been given a reasonable opportunity to ask questions relating to the Purchased Assets and the Business and to receive answers thereto; (iii) Purchaser has completed its business, accounting and legal due diligence review of the Purchased Assets and the Business; and (iv) in completing the transactions contemplated in accordance with this Agreement, Purchaser has not and is not relying on representations and warranties of Seller which are not expressly stated in this Agreement; provided, however, that notwithstanding the investigation conducted by Purchaser and any knowledge of facts determined or determinable by the Purchaser pursuant to such investigation, Purchaser has the right to rely upon the representations, warranties, covenants and agreements of Seller and Principals contained in this Agreement except to the extent that (i) Purchaser had, prior to Closing, actual knowledge of Seller's and the Principals' breach of any such representation or warranty; (ii) neither Seller nor either of the Principals had knowledge of such breach ; and (iii) Purchaser intentionally withheld such knowledge from Seller and the Principals. For purposes generality of the foregoing, (i) Purchaser agrees that it shall not have the right to terminate this Agreement or obtain a reduction of the Purchase Price as a result of any such fact, circumstance or other matter so discovered (including, without limitation, relating to the physical condition of the Property, the operations of the Property or otherwise), except as provided in Section 5.1.4 below and (ii) Purchaser shall have no right to terminate this Agreement or obtain a return of the Deposit except as expressly provided in this Agreement. 5.1.2 In conducting any inspection of the Property or otherwise accessing the Property, Purchaser shall at all times comply with all laws and regulations of all applicable governmental authorities, and neither Purchaser nor any of Purchaser's knowledge Representatives shall (i) contact or have any discussions with any of Seller's employees, agents or representatives, or with any tenants (including, without limitation, having any contacts whatsoever with tenants, including but not limited to telephone conversations or electronic mail messages) at, or contractors providing services to, the Property, unless in each case Purchaser obtains the prior written consent of Seller (which may be given via electronic mail), it being agreed that all such contacts or discussions shall, pending any such approval, be directed to Cxxxx Xxxxxxx via electronic mail (at Cxxxx.Xxxxxxx@xxxxxx.xxx), (ii) interfere with the business of Seller conducted at the Property or disturb the use or occupancy of any tenant or occupant of the Property or (iii) damage the Property. In conducting any inspection of the Property or otherwise accessing the Property, Purchaser and Purchaser's Representatives shall at all times comply with, and shall be subject to, the rights of the tenants under the Leases (and any persons claiming by, under or through such tenants). Seller may from time to time establish reasonable rules of conduct for Purchaser and Purchaser's Representatives in furtherance of the foregoing, and Purchaser shall comply with all of Seller’s requirements regarding entry upon the Property. Purchaser shall schedule and coordinate all inspections, including, without limitation, any environmental tests, and other access with Seller and shall give Seller reasonable advance notice (at least 24 hours’ electronic notice shall be deemed reasonable) of any such entry upon the Property. Purchaser shall coordinate with Seller prior to include conducting any Property management or leasing staff interviews. Seller shall be entitled to have a representative present at all times during each such inspection, interview or other access unless Seller has, following receipt of Purchaser’s notice of its intent to enter the knowledge Property, elected to not provide any such representative. Purchaser agrees to pay to Seller on demand the cost of only Xxxxxxx X. Xxxxxxrepairing and restoring any damage or disturbance which Purchaser or Purchaser's Representatives shall cause to the Property. All inspection fees, Xxxxx Xxxxxx appraisal fees, engineering fees and Xx Xxxxxxother costs and expenses of any kind incurred by Purchaser or Purchaser's Representatives relating to such inspection and its other access shall be at the sole expense of Purchaser. Subject to the terms of Section 15.17, Purchaser shall keep all information obtained during its inspections and access to the Property confidential. If the Closing shall not occur for any reason whatsoever, Purchaser shall: (A) promptly return to Seller copies of all Property Information delivered by Seller to Purchaser; and (B) promptly destroy all copies and abstracts of the materials referenced in (A) and, subject to applicable law, all materials obtained by Purchaser pursuant to its investigations of the Property. Purchaser and Purchaser's Representatives shall not be permitted to conduct borings of the Property or drilling in or on the Property, or any other invasive, intrusive or destructive testing in connection with the preparation of an environmental audit or in connection with any other inspection of the Property without the prior written consent of Seller, which Seller may give or withhold in its sole discretion (and, if such consent is given, Purchaser shall be obligated to pay to Seller on demand the cost of repairing and restoring any damage as aforesaid); provided that Purchaser shall be entitled to perform any Phase I environmental assessments of the Property and any applicable radon testing without Seller’s consent. This Section 5.1.2 shall survive the Closing or any termination of this Agreement. 5.1.3 Prior to conducting any physical inspection or testing at the Property, Purchaser and Purchaser’s Representatives shall obtain, and during the period of such inspection or testing shall maintain, at their expense: (i) commercial general liability (“CGL”) insurance, issued on a form at least as broad as Insurance Services Office (“ISO”) Commercial General Liability Coverage “occurrence” form CG 00 01 10 01 or another “occurrence” form providing equivalent coverage, including contractual liability and personal injury liability coverage, with limits of not less than One Million Dollars ($1,000,000) for any one occurrence and Two Million Dollars ($2,000,000) in the aggregate; (ii) to the extent Purchaser or any Purchaser’s Representatives is the owner of any vehicles, has a comprehensive automobile liability insurance (covering any automobiles owned or operated by Purchaser) issued on a form at least as broad as ISO Business Auto Coverage form CA 00 01 07 97 or other form providing equivalent coverage; provided, if Purchaser or Purchasers’ Representatives are not the owners of any vehicles, any automobile insurance coverage shall be limited to the extent of any non-owned, hired vehicles; (iii) worker's compensation insurance or participation in a monopolistic state workers’ compensation fund, and (iv) employer's liability insurance or (in a monopolistic state) Stop Gap Liability insurance. Such automobile liability insurance shall be in an amount not less than One Million Dollars ($1,000,000) for each accident. Such worker's compensation insurance shall carry minimum limits as defined by the law of the jurisdiction in which the Property is located (as the same may be amended from time to time). Such employer's liability insurance shall be in an amount not less than One Million Dollars ($1,000,000) for each accident, One Million Dollars ($1,000,000) disease-policy limit, and One Million Dollars ($1,000,000) disease-each employee. Seller, and its property manager, shall be covered as additional insureds on the CGL and automobile liability insurance policies with respect to liability arising out of the named insured’s acts or omissions relating to the Property. The insurer and the terms and conditions of all the foregoing policies shall be acceptable to Seller. Prior to making any entry upon the Property, Purchaser shall furnish to Seller a certificate of insurance evidencing the foregoing coverages, which certificate of insurance shall be in form and substance satisfactory to Seller. Seller acknowledges that Purchaser has complied with the foregoing provisions pursuant to the Access Agreement. 5.1.4 Purchaser shall have from the Effective Date through 5:00 p.m. (Eastern time) on September 30, 2016 (the “Study Period”), within which to determine, in its sole discretion, whether all matters related to the Property are satisfactory to Purchaser. If Purchaser, in its sole discretion, determines that the purchase of the Property is feasible and that Purchaser desires to proceed with the transactions contemplated under this Agreement, then Purchaser shall deliver to Seller, prior to the expiration of the Study Period, written notice that Purchaser desires to proceed with the transactions contemplated under this Agreement and Purchaser shall have no further right to terminate this Agreement under this Section 5.1.4. If Purchaser fails to timely notify Seller prior to the expiration of the Study Period (with time being of the essence) that Purchaser desires to proceed with the transactions contemplated under this Agreement as aforesaid, or if Purchaser delivers to Seller, prior to the expiration of the Study Period, written notice that the Purchaser does not want to proceed with the transactions contemplated under this Agreement, then this Agreement shall terminate upon the earlier of (i) Seller’s receipt of Purchaser’s notice not to proceed, and (ii) Seller's knowledge the expiration of the Study Period, except for those matters which are indicated herein as surviving termination, and the Deposit shall be deemed immediately returned to include Purchaser. 5.1.5 Purchaser hereby agrees to indemnify, defend, and hold harmless Seller, its partners, members, affiliates, property manager, and their respective officers, directors, agents, employees, and representatives (collectively, the knowledge “Indemnified Parties”) from and against any and all liens, claims, or damages of any kind or nature, including any demands, actions or causes of action, assessments, losses, costs, expenses, liabilities, interest and penalties, and reasonable attorneys’ fees suffered, incurred, or sustained by any of the persons named Indemnified Parties directly caused by Purchaser or Purchaser’s Representatives with respect to any due-diligence activities at the Property pursuant to this Agreement, provided that Purchaser will not be responsible for indemnifying, defending or holding harmless the Indemnified Parties with respect to (w) the mere discovery or inadvertent disturbance of pre-existing conditions at the Property, including hazardous materials or mold or microorganisms, or any violation of environmental laws at the Property, unless exacerbated by Purchaser, (x) defects in the Property, (y) noncompliance of the Property with applicable laws or (z) any matters caused by the negligence, gross negligence or willful misconduct of the Indemnified Parties or their affiliates. This Section 12.kk. hereof5.1.5 shall survive the Closing or any termination of this Agreement.