Common use of Due Diligence Conditions Clause in Contracts

Due Diligence Conditions. Purchaser’s obligation to purchase the Property is subject to satisfaction of the conditions in this Section 3 (the “Due Diligence Conditions”). In order to satisfy the Due Diligence Conditions, Purchaser and its representatives, authorized agents and consultants shall have access to the Property to undertake such activities thereon reasonably required to conduct its inspections, after reasonable advance notice to Seller, subject to the qualifications in Section 18 of this Contract. Seller acknowledges that Purchaser may conduct an investigation of the Property, at Purchaser's sole cost and expense which include, without limitation, environmental, appraisal, Phase I study and elevation survey, zoning and municipal review, title, review of Leases and engineering, mechanical and structural inspections and any other physical or legal matter which Purchaser may wish to examine; provided, however, the Purchaser shall not be allowed to conduct any invasive or destructive testing of any kind as stated in Section 18 of this Contract. Seller shall reasonably cooperate with Purchaser in its inspections, examinations and investigations. Purchaser shall conduct such inspections in a way so as to minimize and not unreasonably interfere with the existing use and the parking area on the Property. Purchaser shall conduct this investigation by the end of the day which is One Hundred (180) days from the Effective Date (the period between the Effective Date and this date is the “Due Diligence Period”). Notwithstanding any other provisions contained in this Contract, Purchaser shall have the right for good cause shown based on information discovered during the Due Diligence Period, to terminate this Contract by delivering notice to the Seller and Escrow Agent by 5:00 P.M. Eastern Time on the expiration date of the Due Diligence Period (the “Termination Notice”). If Purchaser timely delivers a Termination Notice, the parties will proceed as provided in subparagraph (a) below. If no Termination Notice has been timely delivered to Seller and Escrow Agent, then all Due Diligence Conditions will be conclusively deemed to have been satisfied or waived, and the parties will proceed in accordance with the terms of this Contract.

Due Diligence Conditions. Purchaser’s obligation to purchase 5.1 Conditions for the Property is subject to satisfaction benefit of the conditions in Purchaser: The Purchaser shall have Sixty (60) days from the Contract Date (which is the date upon which this Section 3 Agreement has been executed by the last of the Purchaser or the Vendor) (the “Due Diligence Inspection Period”) within which to satisfy itself in its sole, absolute discretion as to density conditions, soils tests and the environmental condition of the Property, (collectively, the “Purchaser’s Conditions”). In order the absence of written notice before the end of the Inspection Period that the Purchaser is satisfied with the Purchaser’s Conditions (the “Purchaser’s Waiver”) then the Purchaser shall be deemed not to satisfy be satisfied and this agreement shall be at an end and all monies paid hereunder shall be returned to the Due Diligence ConditionsPurchaser without deduction and with interest earned thereon, if any. In the event that the Purchaser has an objection to the results of the soils tests and/or environmental report (the “Environmental Objection”) which would cause the Purchaser to terminate the transaction and not provide the Purchaser’s Waiver, the Purchaser shall provide the Vendor with notice in writing of its objection (the “Environmental Notice”) along with copies of said relevant reports on or before the end of Inspection Period. The Purchaser and the Vendor shall make reasonable commercial efforts to mitigate the issues found in the Environmental Objection. If the Purchaser is not satisfied with the mitigation resolution provided by the Vendor to resolve the Environmental Objection within ten days after the Purchaser providing the Environmental Notice to the Vendor, the Purchaser shall provide written notice to the Vendor that this Agreement is terminated and this Agreement shall be at an end and all monies paid hereunder shall be returned to the Purchaser without deduction and with interest earned thereon, if any. In the alternative within the said timeframe, the Purchaser may provide the Purchaser’s Waiver to the Vendor to continue with the transaction. The Purchaser, in its representativessole discretion, shall have the right to extend the Inspection period for a further period of 10 days upon giving the Vendor written notice before 5:00 p.m. on the date of the Inspection Period. After the Contract Date, the Purchaser, its authorized agents and consultants representatives designated by the Purchaser, shall from time to time have access the right to inspect, make tests (including soil and environmental testing) and reports and enter onto the Property and buildings (if any) for the purpose of satisfying itself that there are no Hazardous Materials (as defined herein), upon in or adjacent to the Property to undertake such activities thereon reasonably required to conduct its inspections, after reasonable advance notice to Seller, subject to or soil conditions which would increase the qualifications in Section 18 of this Contract. Seller acknowledges that Purchaser may conduct an investigation normal development costs of the Property. For the purposes hereof, the term “Hazardous Materials” means any contaminants, pollutant or substance that, when released into the natural environment, could cause, at Purchaser's sole cost some immediate or future time, harm or degradation to the natural environment or risk to human health and expense which shall include, without limitation, any substance or material that is or shall become prohibited, controlled or regulated by any governmental authorities and includes any contaminants, pollutants, liquid wastes, industrial wastes, hazardous wastes, hazardous materials or hazardous substances as referred to or defined in any federal, provincial and/or municipal laws, by-laws, rules, regulations, orders or ordinances relating to environmental, appraisal, Phase I study and elevation survey, zoning and municipal review, title, review of Leases and engineering, mechanical and structural inspections and any other physical or legal matter which Purchaser may wish to examine; provided, however, the Purchaser shall not be allowed to conduct any invasive or destructive testing of any kind as stated in Section 18 of this Contract. Seller shall reasonably cooperate with Purchaser in its inspections, examinations and investigations. Purchaser shall conduct such inspections in a way so as to minimize and not unreasonably interfere with the existing use and the parking area on the Property. Purchaser shall conduct this investigation by the end of the day which is One Hundred (180) days from the Effective Date (the period between the Effective Date and this date is the “Due Diligence Period”). Notwithstanding any other provisions contained in this Contract, Purchaser shall have the right for good cause shown based on information discovered during the Due Diligence Period, to terminate this Contract by delivering notice to the Seller and Escrow Agent by 5:00 P.M. Eastern Time on the expiration date of the Due Diligence Period (the “Termination Notice”). If Purchaser timely delivers a Termination Notice, the parties will proceed as provided in subparagraph (a) below. If no Termination Notice has been timely delivered to Seller and Escrow Agent, then all Due Diligence Conditions will be conclusively deemed to have been satisfied or waived, and the parties will proceed in accordance with the terms of this Contracthealth and/or safety matters.

Due Diligence Conditions. Purchaser’s obligation 's right to purchase conduct Due ------------------------ Diligence is expressly conditioned upon, and Purchaser, for itself and the Purchaser Parties, covenants and agrees that: (a) all Due Diligence shall be conducted by the Purchaser Parties in a manner which is not disruptive in any material respect to the Tenants or the normal operations of the Property; (b) the Purchaser Parties shall not enter upon the Property is except during regular business hours for agreed upon purposes and subject to satisfaction first coordinating such entry and access with Seller by giving at least one (1) business day prior written notice in advance and detailing the scope of the conditions Due Diligence to be conducted, whether or not Property Manager's presence is required; (c) the Purchaser Parties shall coordinate with Seller and shall not contact any of the Tenants or any parties to the Contracts or Other Contracts, without the prior consent of Seller which shall not be unreasonably withheld, conditioned or delayed and, at Seller's option, the presence of Property Manager at all times, and access to units occupied by Tenants shall be coordinated with Seller by giving at least one (1) business day prior written notice in advance thereof and shall be subject to the terms of the Tenants' respective Leases; (d) the Purchaser Parties shall at all times strictly comply with any and all procedures agreed to in this Section 3 (the “Due Diligence Conditions”). In order to satisfy 2.4 for the Due Diligence Conditions----------- and all laws, ordinances, rules and regulations applicable to the Property and shall not engage in any activities that would violate any permits, licenses, environmental, wetlands or other regulations pertaining to the Property; (e) Purchaser shall promptly, and no later than five (5) business days after each entry on the Property, restore or repair, to Seller's reasonable satisfaction, any damage caused by the Due Diligence or other acts or omissions of any of the Purchaser Parties, provided however, Purchaser shall cause any invasive testing, including testing within walls and its representativespipes, authorized agents to the extent permitted by Seller, to be immediately repaired to Seller's reasonable satisfaction and consultants shall have access specifically coordinate such testing and repairs in advance with Seller; (f) none of the Purchaser Parties shall engage in any activities that would cause Seller's rights, title, interests or Obligations in or relating to the Property to undertake such activities thereon reasonably required to conduct its inspectionsbe adversely affected in any way, after reasonable advance notice to Seller, subject to the qualifications in Section 18 of this Contract. Seller acknowledges that Purchaser may conduct an investigation of the Property, at Purchaser's sole cost and expense which includeincluding, without limitation, environmentalthe assertion of any mechanic's liens, appraisaland Purchaser shall, Phase I study without limitation, immediately remove and elevation surveybond over any liens, zoning notices and municipal reviewclaims of liens or other matters affecting any of the foregoing which are caused by or arise out of the acts or omissions of the Purchaser Parties; (g) Purchaser shall maintain worker's compensation insurance covering all of its employees involved in such activities, titleand shall cause the Purchaser Parties entering upon the Property to maintain, review of Leases at all times, commercial general liability insurance coverage in an amount not less than One Million Dollars ($1,000,000) or such other reasonable amount as Seller and engineering, mechanical and structural inspections and any other physical or legal matter which Purchaser may wish agree upon from time to examinetime, naming Seller as an additional insured, and worker's compensation insurance covering all employees involved in such activities, and shall prior to the date on which access or entry to the Property first occurs, provide Seller with evidence of such insurance coverage, which insurance shall be in a form and issued by a company reasonably satisfactory in all respects to Seller and shall not limit in any way Purchaser's obligations or liabilities hereunder; (h) unless the Closing has been consummated as herein provided, howeverall materials, documents and other Information, of whatsoever kind or nature, obtained by any of the Purchaser Parties in the course of conducting Due Diligence, whether or not provided by Seller (other than information which is published or which otherwise is generally available from public records or is in the public domain) (collectively, the Purchaser "Evaluation Materials"), shall be treated as strictly confidential and shall not be allowed disclosed, except as may be required by law or as may be necessary or required in connection with any proceedings or action involving this Agreement or the Property, to conduct any invasive Person without Seller's prior written consent, provided however, Purchaser may make disclosures to the Purchaser Parties and Purchaser's agents, professionals, consultants, investors, lenders, (including potential lenders), and attorneys for purposes of evaluating the prospective purchase or destructive testing financing so long as each such Person has first been advised of and agrees to respect the terms of this confidentiality agreement; (i) in the event Purchaser does not elect to proceed to Closing in accordance with Section ------- 2.3 or terminates this Agreement pursuant to Sections 2.2(b) or 2.12, Purchaser --- ----------------------- shall promptly, and no later than five (5) days thereafter, return to Seller all Evaluation Materials provided to any of the Purchaser Parties by any of the Seller Parties; (j) Purchaser shall bear all costs and expenses of its Due Diligence, including the Due Diligence conducted by any of the Purchaser Parties, and Seller shall have no obligation to pay for and/or reimburse any of the Purchaser Parties for any of such costs and expenses, whether or not Closing occurs hereunder, except as may be provided in Section 6.2 and (k) upon request, ----------- Purchaser shall provide Seller with copies of any kind as stated in Section 18 and all reports or other information prepared by third parties on behalf of this Contract. Seller shall reasonably cooperate Purchaser with Purchaser in its inspections, examinations and investigations. Purchaser shall conduct such inspections in a way so as respect to minimize and not unreasonably interfere with the existing use and the parking area on the Property. Purchaser shall conduct this investigation hereby covenants and agrees to indemnify, defend and hold harmless Seller Parties from and against any and all liability, damage, loss, lien, expense, suit and claim, including reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses, whether arising out of injury or death to persons or damage to the Property or loss of any personal property or otherwise, caused by the end or arising out of: (i) a breach by any of the day which is One Hundred (180) days from Purchaser Parties of the Effective Date (the period between the Effective Date conditions, covenants and this date is the “Due Diligence Period”). Notwithstanding any other provisions contained obligations set forth in this Contract, Purchaser shall have the right for good cause shown based on information discovered during Section ------- 2.4; and/or (ii) the Due Diligence Periodconducted by the Purchaser Parties or other --- acts or omissions of the Purchaser Parties (but shall not be obligated to indemnify, to terminate this Contract by delivering notice to defend or hold harmless the Seller and Escrow Agent Parties for their own acts or omissions or pre-existing conditions or the discovery or release of any Hazardous Substances unless brought onto the Property by 5:00 P.M. Eastern Time on the expiration date Purchaser Parties or resulting from any act or omission of the Due Diligence Period (the “Termination Notice”Purchaser Parties). If Purchaser timely delivers a Termination NoticePurchaser's indemnity obligations shall not be limited by any workmen's compensation, the parties will proceed as provided in subparagraph (a) below. If no Termination Notice has been timely delivered to Seller and Escrow Agentbenefits, then all Due Diligence Conditions will be conclusively deemed to have been satisfied disability or waived, and the parties will proceed in accordance with the terms of this Contractother similar laws.

Due Diligence Conditions. Purchaser’s obligation 's right to purchase conduct Due Diligence is expressly conditioned upon, and Purchaser, for itself and the Purchaser Parties, covenants and agrees that: (a) all Due Diligence shall be conducted by the Purchaser Parties in a manner which is not disruptive in any material respect to the Tenants or the normal operations of the Property; (b) the Purchaser Parties shall not enter upon the Property is except during regular business hours for agreed upon purposes and subject to satisfaction first coordinating such entry and access with Seller by giving at least One (1) business day prior written notice in advance and detailing the scope of the conditions Due Diligence to be conducted, including any physically intrusive Due Diligence such as sampling of soils, other media, building materials or the like and whether or not Property Manager's presence is required; (c) the Purchaser Parties shall coordinate with Seller and shall not contact any of the Tenants or any parties to the Contracts or Other Contracts, without the prior consent of Seller and, at Seller's option, the presence of Property Manager at all times, and access to units occupied by Tenants shall be coordinated with Seller by giving at least One (1) business day prior written notice in advance thereof and shall be subject to the terms of the Tenants' respective Leases; (d) the Purchaser Parties shall at all times strictly comply with any and all procedures agreed to in this Section 3 (the “Due Diligence Conditions”). In order to satisfy 2.4 for the Due Diligence Conditionsand all laws, ordinances, rules and regulations applicable to the Property and shall not engage in any activities that would violate any permits, licenses, environmental, wetlands or other regulations pertaining to the Property; (e) Purchaser shall promptly, and no later than five (5) days after each entry on the Property, restore or repair, to Seller's reasonable satisfaction, any damage caused by the Due Diligence or other acts or omissions of any of the Purchaser Parties, provided however, Purchaser shall cause any invasive testing, including testing within walls and its representativespipes, authorized agents to be immediately repaired to Seller's satisfaction and consultants shall have access specifically coordinate such testing and repairs in advance with Seller; (f) none of the Purchaser Parties shall engage in any activities that would cause Seller's rights, title, interests or Obligations in or relating to the Property to undertake such activities thereon reasonably required to conduct its inspectionsbe adversely affected in any way, after reasonable advance notice to Seller, subject to the qualifications in Section 18 of this Contract. Seller acknowledges that Purchaser may conduct an investigation of the Property, at Purchaser's sole cost and expense which includeincluding, without limitation, environmentalthe assertion of any mechanic's liens, appraisaland Purchaser shall, Phase I study without limitation, immediately remove and elevation surveybond over any liens, zoning notices and municipal reviewclaims of liens or other matters affecting any of the foregoing which are caused by or arise out of the acts or omissions of the Purchaser Parties; (g) Purchaser shall maintain worker's compensation insurance covering all of its employees involved in such activities, titleand shall cause the Purchaser Parties entering upon the Property to maintain, review of Leases at all times, comprehensive general liability insurance coverage in an amount not less than One Million Dollars ($1,000,000) or such other reasonable amount as Seller and engineering, mechanical and structural inspections and any other physical or legal matter which Purchaser may wish agree upon from time to examinetime, naming Seller as an additional insured, and worker's compensation insurance covering all employees involved in such activities, and shall prior to the date on which access or entry to the Property first occurs, provide Seller with evidence of such insurance coverage, which insurance shall be in a form and issued by a company reasonably satisfactory in all respects to Seller and shall not limit in any way Purchaser's obligations or liabilities hereunder; provided(h) all materials, howeverdocuments and other Information, of whatsoever kind or nature, obtained by any of the Purchaser Parties in the course of conducting Due Diligence, whether or not provided by Seller (collectively, the Purchaser "Evaluation Materials"), shall be treated as strictly confidential and shall not be allowed disclosed, except (i) as may be required by law or a governmental agency, (ii) is readily available to conduct the general public at the time of receipt by Purchaser, or (iii) subsequently becomes known to the general public through no fault or omission by any invasive or destructive testing of Person, to any kind as stated in Section 18 of this Contract. Seller shall reasonably cooperate with Purchaser in its inspectionsPerson without Seller's prior written consent, examinations and investigations. Purchaser shall conduct such inspections in a way so as to minimize and not unreasonably interfere with the existing use and the parking area on the Property. Purchaser shall conduct this investigation by the end of the day which is One Hundred (180) days from the Effective Date (the period between the Effective Date and this date is the “Due Diligence Period”). Notwithstanding any other provisions contained in this Contractprovided however, Purchaser shall have the right for good cause shown based on information discovered during the Due Diligence Period, to terminate this Contract by delivering notice may make disclosures to the Seller Purchaser Parties and Escrow Agent by 5:00 P.M. Eastern Time on the expiration date of the Due Diligence Period Purchaser's agents, professionals, consultants, investors, lenders, (the “Termination Notice”including potential lenders). If Purchaser timely delivers a Termination Notice, the parties will proceed as provided in subparagraph (a) below. If no Termination Notice has been timely delivered to Seller and Escrow Agent, then all Due Diligence Conditions will be conclusively deemed to have been satisfied or waived, and attorneys for purposes of evaluating the parties will proceed in accordance with prospective purchase so long as each such Person has first been advised of and agrees to respect the terms of this Contractconfidentiality agreement; (i) in the event Purchaser does not elect to proceed to Closing in accordance with Section 2.3 or terminates this Agreement pursuant to Sections 2.2(b) or 2.12, Purchaser shall promptly, and no later than five (5) days thereafter, return to Seller all Evaluation Materials provided to any of the Purchaser Parties by any of the Seller Parties; and (j) Purchaser shall bear all costs and expenses of its Due Diligence, including the Due Diligence conducted by any of the Purchaser Parties, and Seller shall have no obligation to pay for and/or reimburse any of the Purchaser Parties for any of such costs and expenses, whether or not Closing occurs hereunder, except as may be provided in Section 6.2. Purchaser hereby covenants and agrees to indemnify, defend and hold harmless Seller Parties from and against any and all liability, damage, loss, lien, expense, suit and claim, including reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code) and expenses, whether arising out of injury or death to persons or damage to the Property or loss of any personal property or otherwise, caused by or arising out of: (i) a breach by any of the Purchaser Parties of the conditions, covenants and obligations set forth in this Section 2.4; and/or (ii) the Due Diligence conducted by the Purchaser Parties or other acts or omissions of the Purchaser Parties (but shall not be obligated to indemnify, defend or hold harmless the Seller Parties for their own acts or omissions or pre-existing conditions which Purchaser Parties have not contributed to or aggravated in any way). Purchaser's indemnity obligations shall not be limited by any workmen's compensation, benefits, disability or other similar laws.