Access to Real Property. Buyer understands and agrees that any on-site inspections of the Real Property, including by the Environmental Consultant, shall be conducted upon not less than forty-eight (48) hours' prior notice to Company and/or the Water Subsidiary operating at such Real Property and in the presence of a representative of Company or the applicable Water Subsidiary. Without limiting Section 5.1(a)(i), from the date hereof until the earlier of the Closing and date of termination of this Agreement, Seller and Company agree to furnish to Buyer and its Representatives, at reasonable times and places such access to the facilities of the Water Business as Buyer may from time to time reasonably request for the Environmental Consultant to conduct environmental inspections, investigations and testing (including Phase I environmental site assessments and audits) of the operations and Real Property of Company and the Water Subsidiaries. Notwithstanding the foregoing, the Parties agree that the Environmental Consultant may only conduct Phase II environmental site assessments and audits on a Real Property if Buyer, Buyer's environmental counsel, the Environmental Consultant and Seller and Seller's environmental counsel collectively shall reasonably determine, based on the results of the Phase I environmental site assessments and audits or any other information or evidence available to them, that Waste is present or likely present on, at, above or below any Real Property and (A) such Phase I environmental site assessments and audits or other information or evidence indicate that a release of such Waste into structures on the Real Property or into the ground, groundwater or surface water of the Real Property has occurred, (B) such Waste presents a material risk to human health or the environment or (C) such Waste is reasonably likely to result in material Liability to the Company or any Water Subsidiary under Environmental Laws. Buyer shall (i) use commercially reasonable efforts to conduct its investigations at the Real Property, including by the Environmental Consultant, in a manner that minimizes any disruption of the operations of Company and/or any Water Subsidiary at the Real Property and (ii) indemnify, protect, defend and hold harmless Company and each Water Subsidiary from any and all claims (including, without limitation, any claim for a mechanic's lien or materialman's lien), causes of action, costs, losses, damages and reasonable attorneys' fees incurred by Company or any Water Subsidiary in connection with or arising out of any inspections carried on by or on behalf of Buyer pursuant to this Section 5.1 (except to the extent of conditions disclosed in any such inspection that existed prior to such inspection and that constitute a breach of a representation or warranty contained in Section 3.10(c)). The provisions of the preceding sentence of this Section 5.1(b) shall survive the termination of this Agreement.
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Access to Real Property. Buyer understands During the Contract Period, Seller agrees to afford each Purchaser and a reasonable number of its employees, agents, consultants, contractors, financing sources (including the Financing Parties), potential financing sources and advisors with reasonable access to the Real Property (including personnel, properties, Contracts, Books and Records (whether in paper or electronic form)) for the purposes of inspecting the Real Property, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as such Purchaser may reasonably require to assess the condition and suitability of the Real Property (in all cases subject to the terms hereof, including this Section 26), in each case, at reasonable times during normal business hours and upon reasonable advance notice (which notice may be by email to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇), provided that, except with Seller’s consent, neither Purchaser nor any of their respective employees, agents, consultants, contractors, financing sources, potential financing sources or advisors shall enter any portion of the Real Property unless accompanied by a representative of Seller (and Seller agrees that to make such representatives reasonably available at the times requested by such Purchaser in accordance with this Section 26), and Seller shall not be required to incur any on-site inspections unreimbursed cost or expense or commence any action to afford any Purchaser with such access. Any entry to the Real Property shall not materially interfere with the activities on or about the Real Property or the tenants, subtenants, occupants and invitees thereof without the prior consent of Seller. Each Purchaser shall:
i. pay for or repair any physical damage to the Real Property or any other property resulting from any such investigations of the Real Property;
ii. comply with all Laws applicable to the investigations and all other activities undertaken by such Purchaser in connection therewith;
iii. take all reasonable actions and implement all reasonable protections necessary to reasonably ensure that the investigations and the equipment, including by materials, and substances generated, used or brought into the Environmental Consultant, shall be conducted upon not less than forty-eight (48) hours' prior notice to Company and/or the Water Subsidiary operating at such Real Property and in connection with the presence investigations, pose no unreasonable threat to the safety or health of a representative of Company persons or the applicable Water Subsidiary. Without limiting Section 5.1(a)(i)environment, from the date hereof until the earlier of the Closing and date of termination of this Agreement, Seller and Company agree cause no damage to furnish to Buyer and its Representatives, at reasonable times and places such access to the facilities of the Water Business as Buyer may from time to time reasonably request for the Environmental Consultant to conduct environmental inspections, investigations and testing (including Phase I environmental site assessments and audits) of the operations and Real Property of Company and the Water Subsidiaries. Notwithstanding the foregoing, the Parties agree that the Environmental Consultant may only conduct Phase II environmental site assessments and audits on a Real Property if Buyer, Buyer's environmental counsel, the Environmental Consultant and Seller and Seller's environmental counsel collectively shall reasonably determine, based on the results of the Phase I environmental site assessments and audits or any other information or evidence available to them, that Waste is present or likely present on, at, above or below any Real Property and (A) such Phase I environmental site assessments and audits or other information or evidence indicate that a release of such Waste into structures on the Real Property or into other property of Seller or other persons;
iv. upon request of Seller after being notified by Purchasers of an issue identified therein, furnish to Seller, at no cost or expense to Seller, copies of all surveys, engineering, asbestos, environmental and other studies and reports relating to the groundapplicable investigations which any Purchaser shall obtain with respect to the Real Property;
v. indemnify, groundwater defend and hold Seller and Seller’s officers, shareholders, partners, members, directors, employees, attorneys and agents harmless from and against any and all Losses (excluding special, consequential or surface water punitive damages) resulting from or arising out of the entry upon the Real Property has occurredby such Purchaser and its employees, (B) agents, consultants, contractors and advisors;
vi. as a condition precedent to entering the Real Property to perform investigation and testing, maintain or cause to be maintained, at such Waste presents Purchaser’s expense, a material risk policy of comprehensive general public liability insurance, with a broad form contractual liability endorsement and with a combined single limit of not less than $3,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $3,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the amount of $5,000,000, insuring such Purchaser and each of Seller and the Acquired Companies as additional insureds, against any injuries or damages to human health persons or the environment property that may result from or (C) such Waste is reasonably likely are related to result in material Liability to the Company or any Water Subsidiary under Environmental Laws. Buyer shall (i) use commercially reasonable efforts such Purchaser’s and/or its directors, officers, employees, affiliates, partners, members, brokers, agents or other representatives, including attorneys, accountants, contractors, consultants, engineers and financial advisors (collectively, with respect to conduct its investigations at each Purchaser, “Purchaser’s Representatives”) entry to the Real Property, including by the Environmental Consultant, in a manner that minimizes any disruption of the operations of Company and/or any Water Subsidiary at the Real Property and (ii) indemnify, protect, defend and hold harmless Company and each Water Subsidiary from any and all claims (including, without limitation, any claim for a mechanic's lien investigations or materialman's lien), causes of action, costs, losses, damages and reasonable attorneys' fees incurred by Company or any Water Subsidiary in connection with or arising out of any inspections carried on other activities conducted thereon by or on behalf of Buyer pursuant such Purchaser’s Representatives, all of which insurance shall be on an “occurrence form” and otherwise in such forms and with a nationally recognized insurance company, and deliver a copy of such insurance policy to this Section 5.1 (except Seller prior to the extent of conditions disclosed first entry to the Real Property; vii. not permit the investigations or any other activities undertaken by such Purchaser or such Purchaser’s Representatives to result in any Liens being filed or recorded against the Real Property, and such inspection Purchaser shall, at its sole cost and expense, promptly discharge of record any such Liens that existed prior to such inspection and that constitute a breach of a representation are so filed or warranty contained in Section 3.10(crecorded (including liens for services, labor or materials furnished)). The provisions of the preceding sentence of this Section 5.1(b) shall survive the termination of this Agreement.; and
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Access to Real Property. Buyer understands During the Contract Period, Seller agrees to afford each Purchaser and a reasonable number of its employees, agents, consultants, contractors, financing sources (including the Financing Parties), potential financing sources and advisors with reasonable access to the Real Property (including personnel, properties, Contracts, Books and Records (whether in paper or electronic form)) for the purposes of inspecting the Real Property, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as such Purchaser may reasonably require to assess the condition and suitability of the Real Property (in all cases subject to the terms hereof, including this Section 26), in each case, at reasonable times during normal business hours and upon reasonable advance notice (which notice may be by email to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇), provided that, except with Seller’s consent, neither Purchaser nor any of their respective employees, agents, consultants, contractors, financing sources, potential financing sources or advisors shall enter any portion of the Real Property unless accompanied by a representative of Seller (and Seller agrees that to make such representatives reasonably available at the times requested by such Purchaser in accordance with this Section 26), and Seller shall not be required to incur any on-site inspections unreimbursed cost or expense or commence any action to afford any Purchaser with such access. Any entry to the Real Property shall not materially interfere with the activities on or about the Real Property or the tenants, subtenants, occupants and invitees thereof without the prior consent of Seller. Each Purchaser shall:
(i) pay for or repair any physical damage to the Real Property or any other property resulting from any such investigations of the Real Property;
(ii) comply with all Laws applicable to the investigations and all other activities undertaken by such Purchaser in connection therewith;
(iii) take all reasonable actions and implement all reasonable protections necessary to reasonably ensure that the investigations and the equipment, including by materials, and substances generated, used or brought into the Environmental Consultant, shall be conducted upon not less than forty-eight (48) hours' prior notice to Company and/or the Water Subsidiary operating at such Real Property and in connection with the presence investigations, pose no unreasonable threat to the safety or health of a representative of Company persons or the applicable Water Subsidiary. Without limiting Section 5.1(a)(i)environment, from the date hereof until the earlier of the Closing and date of termination of this Agreement, Seller and Company agree cause no damage to furnish to Buyer and its Representatives, at reasonable times and places such access to the facilities of the Water Business as Buyer may from time to time reasonably request for the Environmental Consultant to conduct environmental inspections, investigations and testing (including Phase I environmental site assessments and audits) of the operations and Real Property of Company and the Water Subsidiaries. Notwithstanding the foregoing, the Parties agree that the Environmental Consultant may only conduct Phase II environmental site assessments and audits on a Real Property if Buyer, Buyer's environmental counsel, the Environmental Consultant and Seller and Seller's environmental counsel collectively shall reasonably determine, based on the results of the Phase I environmental site assessments and audits or any other information or evidence available to them, that Waste is present or likely present on, at, above or below any Real Property and (A) such Phase I environmental site assessments and audits or other information or evidence indicate that a release of such Waste into structures on the Real Property or into other property of Seller or other persons;
(iv) upon request of Seller after being notified by Purchasers of an issue identified therein, furnish to Seller, at no cost or expense to Seller, copies of all surveys, engineering, asbestos, environmental and other studies and reports relating to the groundapplicable investigations which any Purchaser shall obtain with respect to the Real Property;
(v) indemnify, groundwater defend and hold Seller and Seller’s officers, shareholders, partners, members, directors, employees, attorneys and agents harmless from and against any and all Losses (excluding special, consequential or surface water punitive damages) resulting from or arising out of the entry upon the Real Property has occurredby such Purchaser and its employees, agents, consultants, contractors and advisors;
(Bvi) as a condition precedent to entering the Real Property to perform investigation and testing, maintain or cause to be maintained, at such Waste presents Purchaser’s expense, a material risk policy of comprehensive general public liability insurance, with a broad form contractual liability endorsement and with a combined single limit of not less than $3,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $3,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the amount of $5,000,000, insuring such Purchaser and each of Seller and the Acquired Companies as additional insureds, against any injuries or damages to human health persons or the environment property that may result from or (C) such Waste is reasonably likely are related to result in material Liability to the Company or any Water Subsidiary under Environmental Laws. Buyer shall (i) use commercially reasonable efforts such Purchaser’s and/or its directors, officers, employees, affiliates, partners, members, brokers, agents or other representatives, including attorneys, accountants, contractors, consultants, engineers and financial advisors (collectively, with respect to conduct its investigations at each Purchaser, “Purchaser’s Representatives”) entry to the Real Property, including by the Environmental Consultant, in a manner that minimizes any disruption of the operations of Company and/or any Water Subsidiary at the Real Property and (ii) indemnify, protect, defend and hold harmless Company and each Water Subsidiary from any and all claims (including, without limitation, any claim for a mechanic's lien investigations or materialman's lien), causes of action, costs, losses, damages and reasonable attorneys' fees incurred by Company or any Water Subsidiary in connection with or arising out of any inspections carried on other activities conducted thereon by or on behalf of Buyer pursuant such Purchaser’s Representatives, all of which insurance shall be on an “occurrence form” and otherwise in such forms and with a nationally recognized insurance company, and deliver a copy of such insurance policy to this Seller prior to the first entry to the Real Property;
(vii) not permit the investigations or any other activities undertaken by such Purchaser or such Purchaser’s Representatives to result in any Liens being filed or recorded against the Real Property, and such Purchaser shall, at its sole cost and expense, promptly discharge of record any such Liens that are so filed or recorded (including liens for services, labor or materials furnished); and
(viii) other than in accordance with Section 5.1 5(d), not contact, or permit any such Purchaser’s Representatives to contact, any federal, state, county, municipal or other department or Governmental Authority regarding the Real Property without Seller’s prior written consent thereto, which consent shall not be unreasonably withheld, conditioned or delayed (except and, if Seller grants such consent, Seller shall be entitled to receive reasonable prior written notice of the intended contact and shall be entitled to have a representative present when such Purchaser has any such contact with any governmental official or representative); provided, however, that (i) such Purchaser and any such Purchaser’s Representatives may respond to any inquiries from such governmental officials or representatives and provide copies of documents to, and otherwise fully cooperate with, such governmental officials and representatives; provided, further, that to the extent permitted by applicable Law, such Purchaser shall as promptly as practicable notify Seller of conditions disclosed in any such inspection that existed inquiry and consult with Seller and keep Seller informed with respect to the status of, and any discussion, proposal or submission with respect to, such inquiry, and (ii) such Purchaser shall have the right to make, or to cause or permit to be made, inquiries with federal, state, county, municipal and other department and Governmental Authorities and providers of public and private utility services in connection with its review of the status of Permits, compliance of the Real Property with Law and the status of title to the Real Property as well as lien, bankruptcy, litigation and other similar searches with respect to Seller, the Real Estate Sellers, the Acquired Companies and any other applicable Affiliate of Seller.
(ix) Without limiting the foregoing, in no event shall such Purchaser undertake any intrusive physical testing (environmental, structural or otherwise) at the Real Property (such as soil borings, water samplings or the like) prior to such inspection and that constitute a breach the Closing without the explicit prior consent of a representation Seller, which consent shall not be unreasonably withheld, conditioned or warranty delayed.
(x) Notwithstanding anything to the contrary contained in this Agreement, (i) Purchasers shall not have any liability or repair obligations in connection with, and the defense, indemnity and hold harmless provision contained in this Section 3.10(c)). The provisions 26 shall not apply to the extent such Losses arise in connection with the fraud, gross negligence or willful misconduct of the preceding sentence Selling Entities or its Affiliates, or either of this Section 5.1(btheir respective employees, agents, contractors, licensees or invitees and (ii) the Purchasers shall survive have no liability or repair obligations by reason of, nor shall any Purchaser have any duty to indemnify, defend or hold the termination Selling Entities or any other party harmless from or against, any Losses, including any claim for diminution in value of this Agreementthe Real Property or for environmental remediation or clean-up costs, resulting from any Purchaser or any Purchaser’s Representative having merely discovered and/or reported (to the extent required by applicable Law) any environmental or other condition or defect with respect to the Real Property.
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