ENTRY & INSPECTION. During the Due Diligence Period, Seller shall provide Purchaser with reasonable access to the Property, in accordance with the terms and conditions of this Section 4(b), in order for Purchaser to conduct such inspections, tests and studies as Purchaser may elect of the physical condition of the Property, including, without limitation, inspection and testing for the presence of hazardous materials, and for structural, mechanical, seismic, electrical and other physical and environmental conditions and/or characteristics of the Property. Such access, inspections, tests and studies shall be permitted and conducted on the following terms and conditions: Such inspections, tests and studies and Purchaser's access to the Property shall be subject to the rights of existing tenants, licensees or occupants; Purchaser shall pay for (and be solely responsible for) all inspections, tests and studies ordered by Purchaser and all inspection fees, appraisal fees, engineering fees and other costs and expenses of any kind incurred by Purchaser or any of Purchaser's agents, representatives, or other persons designated by Purchaser relating to such inspection and its other access shall be at the sole cost and expense of Purchaser; In connection with any entry by Purchaser or its agents, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entry, but in no event less than twenty-four (24) hours notice, which may be verbal, and shall conduct such entry and any inspections in connection therewith so as to minimize interference with Seller's business on, and Seller's tenants' occupancy of, the Property. Furthermore, Purchaser shall only conduct such entry or inspection with a representative of Seller (designated by Seller) present to accompany the Purchaser, unless Seller otherwise agrees, and Seller agrees to have such representative reasonably available; Purchaser shall indemnify and hold Seller (and its officers, directors, shareholders, partners, principals, members, property managers, employees, agents, affiliates and representatives, and any successors or assigns of the foregoing) harmless from and against all costs, expenses, damages, liabilities, liens or claims, including, without limitation, reasonable attorneys' fees and court costs, arising from any entry on the Property by Purchaser, its agents, representatives, employees or contractors in the course of performing inspections, tests and/or inquiries provided for under this Agreement, or resulting from any conditions on the Property created by Purchaser's entry and testing (but not including any claims resulting from the discovery or disclosure of pre-existing physical or environmental conditions on, in, under or about the Property). Furthermore, Purchaser agrees to pay Seller on demand the reasonable cost of repairing and restoring any damage or disturbance which Purchaser or any of Purchaser's agents, representatives, or other persons designated by Purchaser shall cause to the Property upon receipt of reasonably satisfactory evidence of the extent of such damage and reasonably satisfactory evidence of the cost to repair the same, such indemnification shall survive the termination of this Agreement for a period of ten (10) months; Prior to conducting any physical inspection or testing at the Property, Purchaser shall obtain, and during the period of such inspection or testing shall maintain, at its sole cost and expense, commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, with Seller and its managing agent, if any, named as additional insureds, from an insurer reasonably acceptable to Seller, which insurance policies shall have limits for bodily injury and death of not less than Three Million Dollars ($3,000,000) for any one occurrence and not less than Three Million Dollars ($3,000,000) for property damage liability for any one occurrence. Prior to making any entry upon the Property, Purchaser shall furnish to Seller a certificate of insurance and a copy of the insurance policy evidencing the foregoing coverages. Purchaser's obligation to obtain and maintain such insurance shall survive the termination of this Agreement for a period of ten (10) months; 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; In the event that Closing hereunder shall not occur for any reason whatsoever, Purchaser shall promptly return to Seller copies of all due diligence materials delivered by Seller to Purchaser and shall destroy all copies and abstracts thereof, however the delivery of such items shall in no event be a condition to the return of the ▇▇▇▇▇▇▇ Money to Purchaser; and Notwithstanding anything to the contrary set forth herein, Purchaser or any of Purchaser's agents, representatives, or other persons designated by Purchaser shall not be permitted to conduct borings of the Property or drilling in or on the Property, or any other invasive 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 consent may be conditioned or withheld at Seller's sole and absolute discretion (and if such consent is given, Purchaser shall be obligated to pay to Seller on demand the cost of repairing and restoring any such damage). The preceding sentence shall not be deemed to prohibit Purchaser from conducting Phase I environmental site assessments of the Property, Due Diligence Review; Approval. If, prior to the expiration of the Due Diligence Period, based upon such review, examination or inspection, Purchaser determines, in its sole and absolute discretion, for any reason or no reason, that it no longer desires to acquire the Property, then Purchaser shall have the right to terminate this Agreement upon written notice to Seller (the "Termination Notice") prior to the expiration of the Due Diligence Period, whereupon the ▇▇▇▇▇▇▇ Money promptly shall be returned to Purchaser by the Escrow Agent, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which may be provided by Seller to Escrow Agent, and this Agreement, and the obligations of the parties to purchase and sell the Property hereunder, shall terminate, except that Purchaser's obligations under Sections 4(b)(iv) and 4(b)(vii) above shall survive such termination . If, however, on or before the expiration of the Due Diligence Period, Purchaser determines that the foregoing due diligence matters are acceptable to Purchaser and that it intends to proceed with the acquisition of the Property and the Closing hereunder, then Purchaser shall notify Seller of such determination in writing (the "Approval Notice"). However, if Purchaser fails to deliver a Termination Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, then Purchaser shall be deemed to have elected to proceed to Closing, subject to all of the terms and conditions of this Agreement and the obligations of the parties hereunder shall not terminate, but shall continue in full force and effect. Following the Due Diligence Period, Purchaser shall continue to have the right to enter upon the Property, subject to the conditions set forth above, but shall have no further right to terminate this Agreement in connection with any inspections thereafter conducted by Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
ENTRY & INSPECTION. During the Due Diligence Period, Seller shall provide Purchaser with reasonable access to the Property, in accordance with the terms and conditions of this Section 4(bPARAGRAPH 5(B), in order for Purchaser to conduct such inspections, tests and studies as Purchaser may reasonably elect of the physical condition of the Property, including, without limitation, inspection and testing for the presence of hazardous materialsmaterials or toxic mold, and for structural, mechanical, seismic, electrical and other physical and environmental conditions and/or characteristics of the Property. Such access, inspections, tests and studies shall be permitted and conducted on the following terms and conditions: Such inspections, tests and studies and Purchaser's access to the Property shall be subject to the rights of existing tenants, licensees or occupants; :
(i) Purchaser shall pay for (and be solely responsible for) all inspections, tests and studies ordered by Purchaser and all inspection fees, appraisal fees, engineering fees and other costs and expenses of any kind incurred by Purchaser or any of Purchaser's agents, representatives, or other persons designated by Purchaser relating to such inspection and its other access shall be at the sole cost and expense of Purchaser; .
(ii) In connection with any entry by Purchaser or its agents, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entry, but in no event less than twenty-four (24) hours notice, which may be verbal, entry and shall conduct such entry and any inspections in connection therewith so as to minimize interference with Seller's business on, and Seller's tenants' occupancy of, the Property. Furthermore.
(iii) PURCHASER SHALL INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINST ALL COSTS, Purchaser shall only conduct such entry or inspection with a representative of Seller EXPENSES, DAMAGES, LIABILITIES, LIENS OR CLAIMS, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COURT COSTS, DIRECTLY RELATED TO ANY ENTRY ON THE PROPERTY BY PURCHASER, ITS AGENTS, EMPLOYEES OR CONTRACTORS IN THE COURSE OF PERFORMING INSPECTIONS, TESTS AND/OR INQUIRIES PROVIDED FOR UNDER THIS AGREEMENT, OR RESULTING FROM ANY CONDITIONS ON THE PROPERTY CREATED BY PURCHASER'S ENTRY AND TESTING (designated by Seller) present to accompany the PurchaserBUT NOT INCLUDING ANY CLAIMS RESULTING FROM THE DISCOVERY OR DISCLOSURE OF PRE-EXISTING PHYSICAL OR ENVIRONMENTAL CONDITIONS OR THE NON-NEGLIGENT AND NON-WILLFUL AGGRAVATION OF PRE-EXISTING PHYSICAL OR ENVIRONMENTAL CONDITIONS ON, unless Seller otherwise agreesIN, and Seller agrees to have such representative reasonably available; Purchaser shall indemnify and hold Seller (and its officers, directors, shareholders, partners, principals, members, property managers, employees, agents, affiliates and representatives, and any successors or assigns of the foregoing) harmless from and against all costs, expenses, damages, liabilities, liens or claims, including, without limitation, reasonable attorneys' fees and court costs, arising from any entry on the Property by Purchaser, its agents, representatives, employees or contractors in the course of performing inspections, tests and/or inquiries provided for under this Agreement, or resulting from any conditions on the Property created by Purchaser's entry and testing (but not including any claims resulting from the discovery or disclosure of pre-existing physical or environmental conditions on, in, under or about the PropertyUNDER OR ABOUT THE PROPERTY). Furthermore, Purchaser agrees to pay Seller on demand the reasonable cost of repairing and restoring any damage or disturbance which Purchaser or any of Purchaser's agents, representatives, or other persons designated by Purchaser shall cause to the Property upon receipt of reasonably satisfactory evidence of the extent of such damage and reasonably satisfactory evidence of the cost to repair the same, such indemnification shall survive the termination of this Agreement for a period of ten THE FOREGOING INDEMNITY SHALL SURVIVE THE CLOSING DATE OR EARLIER TERMINATION OF THIS AGREEMENT FOR A PERIOD OF ONE (101) months; Prior to conducting any physical inspection or testing at the Property, Purchaser shall obtain, and during the period of such inspection or testing shall maintain, at its sole cost and expense, commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, with Seller and its managing agent, if any, named as additional insureds, from an insurer reasonably acceptable to Seller, which insurance policies shall have limits for bodily injury and death of not less than Three Million Dollars ($3,000,000) for any one occurrence and not less than Three Million Dollars ($3,000,000) for property damage liability for any one occurrence. Prior to making any entry upon the Property, Purchaser shall furnish to Seller a certificate of insurance and a copy of the insurance policy evidencing the foregoing coverages. Purchaser's obligation to obtain and maintain such insurance shall survive the termination of this Agreement for a period of ten (10) months; 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; In the event that Closing hereunder shall not occur for any reason whatsoever, Purchaser shall promptly return to Seller copies of all due diligence materials delivered by Seller to Purchaser and shall destroy all copies and abstracts thereof, however the delivery of such items shall in no event be a condition to the return of the ▇▇▇▇▇▇▇ Money to Purchaser; and Notwithstanding anything to the contrary set forth herein, Purchaser or any of Purchaser's agents, representatives, or other persons designated by Purchaser shall not be permitted to conduct borings of the Property or drilling in or on the Property, or any other invasive 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 consent may be conditioned or withheld at Seller's sole and absolute discretion (and if such consent is given, Purchaser shall be obligated to pay to Seller on demand the cost of repairing and restoring any such damage). The preceding sentence shall not be deemed to prohibit Purchaser from conducting Phase I environmental site assessments of the Property, Due Diligence Review; Approval. If, prior to the expiration of the Due Diligence Period, based upon such review, examination or inspection, Purchaser determines, in its sole and absolute discretion, for any reason or no reason, that it no longer desires to acquire the Property, then Purchaser shall have the right to terminate this Agreement upon written notice to Seller (the "Termination Notice") prior to the expiration of the Due Diligence Period, whereupon the ▇▇▇▇▇▇▇ Money promptly shall be returned to Purchaser by the Escrow Agent, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which may be provided by Seller to Escrow Agent, and this Agreement, and the obligations of the parties to purchase and sell the Property hereunder, shall terminate, except that Purchaser's obligations under Sections 4(b)(iv) and 4(b)(vii) above shall survive such termination . If, however, on or before the expiration of the Due Diligence Period, Purchaser determines that the foregoing due diligence matters are acceptable to Purchaser and that it intends to proceed with the acquisition of the Property and the Closing hereunder, then Purchaser shall notify Seller of such determination in writing (the "Approval Notice"). However, if Purchaser fails to deliver a Termination Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, then Purchaser shall be deemed to have elected to proceed to Closing, subject to all of the terms and conditions of this Agreement and the obligations of the parties hereunder shall not terminate, but shall continue in full force and effect. Following the Due Diligence Period, Purchaser shall continue to have the right to enter upon the Property, subject to the conditions set forth above, but shall have no further right to terminate this Agreement in connection with any inspections thereafter conducted by PurchaserYEAR.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Chrisken Partners Cash Income Fund L P)
ENTRY & INSPECTION. Buyer shall have the right, subject to the provisions of this Section 4(c) and at Buyer’s sole expense, to conduct such independent reviews, inspections, and investigations, and other customary analyses and studies, as Buyer, in its discretion, deems necessary or appropriate concerning Buyer’s acquisition, ownership and intended use of the Property or the suitability and acceptability of the Property for Buyer’s intended purposes. During the Due Diligence Period, and thereafter so long as this Agreement has not been terminated as provided herein, Seller shall provide Purchaser Buyer, its officers, directors, employees, agents, consultants and contractors (individually, a “Buyer Party” and collectively, “Buyer Parties”) with reasonable access to the PropertyProperty for the purpose of conducting reviews, in accordance with the terms inspections and conditions of investigations pursuant to this Section 4(b4(c). Buyer agrees that in conducting such reviews, in order for Purchaser inspections and investigations:
(i) No Buyer Party shall conduct, or cause to conduct such inspectionsbe conducted, tests and studies as Purchaser may elect any testing, boring, destruction, removal or opening of any portion of the physical condition Land or the Improvements, including without limitation, any environmental testing or any collection of asbestos, water, radon, soil or air samples, without the specific prior written consent of Seller, which consent may be conditioned or withheld by Seller in its sole discretion. No Buyer Party shall disturb any asbestos that may be on or in the Property. 3102/001/117988.10
(ii) Buyer Parties shall not damage any part of the Property or any property owned or held by any tenant or third party.
(iii) Buyer acknowledges and agrees that its inspection rights hereunder shall be subject to the rights of any and all tenants occupying the Property and the rights of any person held under any grant of easement or other document recorded against the Property, including, without limitation, inspection the right of quiet enjoyment. Buyer Parties shall not unreasonably interfere with the use or occupancy of the Real Property by any tenant, licensee, property manager, leasing agent, service contractor, contractor, or invitee.
(iv) Buyer Parties shall promptly pay when due the costs of all tests, investigations and testing for the presence of hazardous materials, and for structural, mechanical, seismic, electrical and other physical and environmental conditions and/or characteristics of examinations done with regard to the Property. Such accessNeither Buyer nor any other Buyer Party shall cause, inspectionsor commit any act or neglect that causes the Property, tests or any portion thereof, to become subject to any attachment, judgment, lien, charge or encumbrance of any kind. In the event that any lien is placed upon all or any portion of the Property resulting directly or indirectly from, or in connection with, any entry onto the Property (whether or not permitted by this Agreement) by Buyer or any other Buyer Party, Buyer shall pay and studies discharge or bond and discharge such lien within five (5) calendar days after the attachment of such lien. If Buyer fails to do so within ten (10) calendar days after written demand from Seller, Seller shall be permitted entitled to take such steps as Seller deems necessary to discharge and remove the same, including payment of amounts claimed due and owing, and Buyer shall be liable for all such amounts paid, and all costs and expenses relating thereto, including, without limitation, reasonable attorneys’ fees and costs of litigation.
(v) Buyer shall be fully liable for, and shall immediately repair, any damage, impact, or disturbance to the Property directly or indirectly caused by any acts of Buyer or any other Buyer Party. Buyer shall restore the Property to the condition it was in immediately prior to such damage, impact or disturbance, including, but not limited to, the immediate removal of anything placed on the Real Property by a Buyer Party. Buyer shall immediately inform Seller if a Buyer Party creates a condition on the Property which Buyer reasonably believes will give rise to a liability or claim for damages against Seller or would result in any occurrence or finding which would require notice to any governmental agency under any applicable law. Buyer Parties shall immediately on completion of each test or inspection of or upon the Property fully restore the Property to its condition as existed before any such test or inspection was undertaken.
(vi) Buyer agrees that any entry onto the Real Property by Buyer or other Buyer Party shall be at their own risk. Buyer shall further be responsible for the protection of any or all personal property of Buyer Parties that may be brought onto the Real Property. Buyer, on behalf of itself and any other Buyer Party, hereby assumes all known and unknown risks associated with entry onto the Real Property and/or use of the Real Property or activities conducted on the following terms and conditions: Such inspections, tests and studies and Purchaser's access to the Property Real Property. Seller shall be subject to the rights of existing tenants, licensees incur no liability or occupants; Purchaser shall pay for (and be solely responsible for) all inspections, tests and studies ordered by Purchaser and all inspection fees, appraisal fees, engineering fees and other costs and expenses obligation of any kind incurred by Purchaser nature to Buyer or any other Buyer Party as a result of Purchaser's agentsBuyer’s or any other Buyer Party’s entry onto, representativesoccupancy, and/or use of the Real Property or other persons designated activities conducted on the Real Property (whether or not permitted by Purchaser relating to such inspection and its other access this Agreement). Buyer shall be at the sole cost and expense of Purchaser; In connection with any entry by Purchaser or its agentsindemnify, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entry, but in no event less than twenty-four (24) hours notice, which may be verbal, and shall conduct such entry and any inspections in connection therewith so as to minimize interference with Seller's business on, and Seller's tenants' occupancy of, the Property. Furthermore, Purchaser shall only conduct such entry or inspection with a representative of Seller (designated by Seller) present to accompany the Purchaser, unless Seller otherwise agrees, and Seller agrees to have such representative reasonably available; Purchaser shall indemnify defend and hold 3102/001/117988.10 harmless Seller and the Released Parties (and its officers, directors, shareholders, partners, principals, members, property managers, employees, agents, affiliates and representatives, and any successors or assigns of the foregoingas defined below) harmless from and against all costs, expenses, damages, liabilities, liens or claims, including, without limitation, including reasonable attorneys' ’ fees and court costsrelating thereto, arising from out of or in connection with, any entry onto, occupancy and/or use of the Real Property or the activities conducted on the Real Property (whether or not permitted by Purchaser, its agents, representatives, employees or contractors in the course of performing inspections, tests and/or inquiries provided for under this Agreement) by Buyer or any other Buyer Party, or resulting from any conditions on condition of the Property created by Purchaser's or in connection with any entry onto the Real Property by any of the Buyer Parties (excluding any such liability arising out of a condition existing on the Property prior to Buyer’s inspection and testing (but not including any claims resulting from testing, which includes, without limitation, the mere discovery or disclosure of pre-existing physical or environmental conditions on, Hazardous Materials in, under on or about the Property, or any such liability caused by the negligence or intentional misconduct of Seller or Seller’s employees or agents). FurthermoreThe provisions of this paragraph shall not be limited by the availability, Purchaser agrees to pay Seller on demand the reasonable cost limits or coverage of repairing and restoring any damage or disturbance which Purchaser insurance carried by Buyer or any of Purchaser's agents, representativesother Buyer Party, or other persons designated by Purchaser required hereunder.
(vii) Buyer shall cause to obtain and maintain, and provide Seller with satisfactory certificates of insurance naming Seller as an additional insured on all policies, with the Property upon receipt of reasonably satisfactory evidence exception of the extent of such damage Worker’s Compensation and reasonably satisfactory evidence of Employer’s Liability policies, evidencing that Buyer and all other Buyer Parties have in full force and effect, the cost to repair the same, such indemnification shall survive the termination of this Agreement for a period of ten following:
(10A) months; Prior to conducting any physical inspection or testing at the Property, Purchaser shall obtain, and during the period of such inspection or testing shall maintain, at its sole cost and expense, commercial Commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, with Seller and its managing agent, if any, named as additional insureds, from an insurer reasonably acceptable to Seller, which insurance policies shall have limits coverage for bodily injury and death property damage. Such insurance shall have a combined single limit of not less than Three One Million U.S. Dollars (U.S. $3,000,0001,000,000.00) for any one per occurrence with a Two Million U.S. Dollars (U.S. $2,000,000.00) aggregate limit; and
(B) Business automobile liability coverage insuring bodily injury and property damage with a combined single limit of not less than Three One Million U.S. Dollars (U.S. $3,000,0001,000,000.00) per accident for property damage liability for any one occurrence. Prior to making any owned, non-owned and hired vehicles.
(viii) Buyer further agrees that:
(A) Any entry upon onto the Real Property, Purchaser shall furnish to Seller a certificate of insurance and a copy of the insurance policy evidencing the foregoing coverages. Purchaser's obligation to obtain and maintain such insurance shall survive the termination of this Agreement for a period of ten (10) months; In conducting any or inspection or investigation of the Property or otherwise accessing the Property, Purchaser shall be conducted only upon at all times comply with all laws and regulations of all applicable governmental authorities; In the event that Closing hereunder shall not occur for any reason whatsoever, Purchaser shall promptly return least twenty-four (24) hours’ prior written notice to Seller copies of all due diligence materials delivered by Seller to Purchaser and shall destroy all copies and abstracts thereof, however the delivery of such items shall in no event be a condition to the return of the through Seller’s designated representative (▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Money to Purchaser; and Notwithstanding anything ▇▇▇, telephone number: (▇▇▇) ▇▇▇-▇▇▇▇, email address: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇) and, if required by Seller, in the presence of a representative of Seller.
(B) Buyer Parties may not contact or have any discussions about the Property with any tenant, licensee, property manager, leasing agent, service contractor, contractor, lien holder or other party with any interest in or contractual relationship with respect to the contrary set forth hereinProperty, Purchaser or any except in the ordinary course of Purchaser's agents, representatives, or other persons designated by Purchaser shall not be permitted business unrelated to conduct borings Buyer’s potential purchase of the Property or drilling in or on the Property, or any other invasive testing, in connection with the preparation of an environmental audit or in connection with any other inspection of the Property governmental agent or agencies, without the Seller’s prior written consent of Sellerconsent, which consent may be conditioned or withheld at Seller's sole and absolute discretion (and if such consent is given, Purchaser shall be obligated to pay to by Seller on demand the cost of repairing and restoring any such damage). The preceding sentence shall not be deemed to prohibit Purchaser from conducting Phase I environmental site assessments of the Property, Due Diligence Review; Approval. If, prior to the expiration of the Due Diligence Period, based upon such review, examination or inspection, Purchaser determines, in its sole and absolute discretion.
(C) Any proposed entry onto the Property by a Buyer Party shall be subject to Seller’s reasonable scheduling requirements. 3102/001/117988.10
(D) Buyer Parties shall not provide any documents, for any reason reports or no reason, that it no longer desires to acquire the Property, then Purchaser shall have the right to terminate this Agreement upon written notice to Seller (the "Termination Notice") prior other materials relating to the expiration of the Due Diligence PeriodProperty to any person, whereupon the ▇▇▇▇▇▇▇ Money promptly shall be returned to Purchaser including Seller, unless such provision has been approved in writing in advance by the Escrow AgentSeller, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which approval may be provided conditioned or withheld by Seller in its sole discretion.
(E) Buyer Parties shall make clear to Escrow Agentany person or group with whom they undertake any discussions that the same are confidential.
(F) Buyer shall give Seller the opportunity to have a representative present at any such discussions or entry onto the Real Property.
(G) Buyer Parties shall observe all appropriate safety precautions, and this Agreementabide by and fully comply with, all laws, statutes, rules, regulations and ordinances now or hereafter made by any federal, state or local governmental authority, in entering onto the obligations of Real Property or conducting any activities on the parties to purchase and sell the Property hereunder, shall terminate, except that Purchaser's obligations under Sections 4(b)(iv) and 4(b)(vii) above shall survive such termination . If, however, on or before the expiration of the Due Diligence Period, Purchaser determines that the foregoing due diligence matters are acceptable to Purchaser and that it intends to proceed with the acquisition of the Property and the Closing hereunder, then Purchaser shall notify Seller of such determination in writing (the "Approval Notice"). However, if Purchaser fails to deliver a Termination Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, then Purchaser shall be deemed to have elected to proceed to Closing, subject to all of the terms and conditions of this Agreement and the obligations of the parties hereunder shall not terminate, but shall continue in full force and effect. Following the Due Diligence Period, Purchaser shall continue to have the right to enter upon the Real Property, subject to the conditions set forth above, but shall have no further right to terminate this Agreement in connection with any inspections thereafter conducted by Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
ENTRY & INSPECTION. During the Due Diligence Period, Seller shall provide Purchaser with reasonable access to the Property, in accordance with the terms and conditions of this Section 4(b), in order for Purchaser to conduct such inspections, tests and studies as Purchaser may elect of the physical condition of the Property, including, without limitation, inspection and testing for the presence of hazardous materials, and for structural, mechanical, seismic, electrical and other physical and environmental conditions and/or characteristics of the Property. Such access, inspections, tests and studies shall be permitted and conducted on the following terms and conditions: :
(i) Such inspections, tests and studies and Purchaser's ’s access to the Property shall be subject to the rights of existing tenants, licensees or occupants; ;
(ii) Purchaser shall pay for (and be solely responsible for) all inspections, tests and studies ordered by Purchaser and all inspection fees, appraisal fees, engineering fees and other costs and expenses of any kind incurred by Purchaser or any of Purchaser's ’s agents, representatives, or other persons designated by Purchaser relating to such inspection and its other access shall be at the sole cost and expense of Purchaser; ;
(iii) In connection with any entry by Purchaser or its agents, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entryentry (which notice to the Entry Representative may be given verbally at telephone number ▇▇▇-▇▇▇-▇▇▇▇ or via email at ▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), but in no event less than twentyforty-four eight (2448) hours notice, which may be verbal, and shall conduct such entry and any inspections in connection therewith so as to minimize interference with Seller's ’s business on, and Seller's ’s tenants' ’ occupancy of, the Property. Furthermore, Purchaser shall only conduct such entry or inspection with a the Entry Representative, or another representative of Seller (designated by Seller) the Entry Representative, present to accompany the Purchaser, unless Seller otherwise agrees, and Seller agrees to have such representative reasonably available; ;
(iv) Purchaser shall indemnify and hold Seller (and its officers, directors, shareholders, partners, principals, members, property managers, employees, agents, affiliates and representatives, and any successors or assigns of the foregoing) harmless from and against all costs, expenses, damages, liabilities, liens or claims, including, without limitation, reasonable attorneys' ’ fees and court costs, arising from any entry on the Property by Purchaser, its agents, representatives, employees or contractors in the course of performing inspections, tests and/or inquiries provided for under this Agreement, or resulting from any conditions on the Property created by Purchaser's ’s entry and testing (but not including any claims resulting from the discovery or disclosure of pre-existing physical or environmental conditions on, in, under or about the Property). Furthermore, Purchaser agrees to pay Seller on demand the reasonable cost of repairing and restoring any damage or disturbance which Purchaser or any of Purchaser's ’s agents, representatives, or other persons designated by Purchaser shall cause to the Property upon receipt of reasonably satisfactory evidence of the extent of such damage and reasonably satisfactory evidence of the cost to repair the same, such indemnification shall survive the termination of this Agreement for a period of ten (10) months; ;
(v) Prior to conducting any physical inspection or testing at the Property, Purchaser shall obtain, and during the period of such inspection or testing shall maintain, at its sole cost and expense, commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, with Seller and its managing agent, if any, named as additional insureds, from an insurer reasonably acceptable to Seller, which insurance policies shall have limits for bodily injury and death of not less than Three Million Dollars ($3,000,000) for any one occurrence and not less than Three Million Dollars ($3,000,000) for property damage liability for any one occurrence. Prior to making any entry upon the Property, Purchaser shall furnish to Seller a certificate of insurance and a copy of the insurance policy evidencing the foregoing coverages. Purchaser's ’s obligation to obtain and maintain such insurance shall survive the termination of this Agreement for a period of ten (10) months; ;
(vi) 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; ;
(vii) In the event that Closing hereunder shall not occur for any reason whatsoever, Purchaser shall promptly return to Seller copies of all due diligence materials delivered by Seller to Purchaser and shall destroy all copies and abstracts thereof, however the delivery of such items shall in no event be a condition to the return of the ▇▇▇▇▇▇▇ Money to Purchaser; and and
(viii) Notwithstanding anything to the contrary set forth herein, Purchaser or any of Purchaser's ’s agents, representatives, or other persons designated by Purchaser shall not be permitted to conduct borings of the Property or drilling in or on the Property, or any other invasive 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 consent may be conditioned or withheld at Seller's ’s sole and absolute discretion (and if such consent is given, Purchaser shall be obligated to pay to Seller on demand the cost of repairing and restoring any such damage). The preceding sentence shall not be deemed to prohibit Purchaser from conducting Phase I environmental site assessments of the Property, Due Diligence Review; Approval. If, prior to the expiration of the Due Diligence Period, based upon such review, examination or inspection, Purchaser determines, in its sole and absolute discretion, for any reason or no reason, that it no longer desires to acquire the Property, then Purchaser shall have the right to terminate this Agreement upon written notice to Seller (the "Termination Notice") prior to the expiration of the Due Diligence Period, whereupon the ▇▇▇▇▇▇▇ Money promptly shall be returned to Purchaser by the Escrow Agent, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which may be provided by Seller to Escrow Agent, and this Agreement, and the obligations of the parties to purchase and sell the Property hereunder, shall terminate, except that Purchaser's obligations under Sections 4(b)(iv) and 4(b)(vii) above shall survive such termination . If, however, on or before the expiration of the Due Diligence Period, Purchaser determines that the foregoing due diligence matters are acceptable to Purchaser and that it intends to proceed with the acquisition of the Property and the Closing hereunder, then Purchaser shall notify Seller of such determination in writing (the "Approval Notice"). However, if Purchaser fails to deliver a Termination Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, then Purchaser shall be deemed to have elected to proceed to Closing, subject to all of the terms and conditions of this Agreement and the obligations of the parties hereunder shall not terminate, but shall continue in full force and effect. Following the Due Diligence Period, Purchaser shall continue to have the right to enter upon the Property, subject to the conditions set forth above, but shall have no further right to terminate this Agreement in connection with any inspections thereafter conducted by Purchaser.,
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Storage Trust, Inc.)
ENTRY & INSPECTION. Buyer shall have the right, subject to the provisions of this Section 4(c) and at Buyer's sole expense, to conduct such independent reviews, inspections, and investigations, and other customary analyses and studies, as Buyer, in its discretion, deems necessary or appropriate concerning Buyer's acquisition, ownership and intended use of the Property or the suitability and acceptability of the Property for Buyer's intended purposes. During the Due Diligence Period, and thereafter, so long as this Agreement has not been terminated as provided herein, Seller shall provide Purchaser Buyer, its officers, directors, employees, agents, consultants and contractors (individually, a "Buyer Party" and collectively, "Buyer Parties") with reasonable access to the PropertyProperty for the purpose of conducting reviews, in accordance with the terms inspections and conditions of investigations pursuant to this Section 4(b4(c). Buyer agrees that in conducting such reviews, in order for Purchaser inspections and investigations:
(i) No Buyer Party shall conduct, or cause to conduct such inspectionsbe conducted, tests and studies as Purchaser may elect any testing, boring, destruction, removal or opening of any portion of the physical condition Land or the Improvements, including without limitation, any environmental testing or any collection of asbestos, water, radon, soil or air samples, without the specific prior written consent of Seller, which consent may be conditioned or withheld by Seller in its sole discretion. No Buyer Party shall disturb any asbestos that may be on or in the Property.
(ii) Buyer Parties shall not damage any part of the Property or any property owned or held by any tenant or third party.
(iii) Buyer acknowledges and agrees that its inspection rights hereunder shall be subject to the rights of any and all tenants occupying the Property and the rights of any person held under any grant of easement or other document recorded against the Property, including, without limitation, the right of quiet enjoyment. Buyer Parties shall not interfere with the use or occupancy of the Real Property by any tenant, licensee, property manager, leasing agent, service contractor, contractor, or invitee.
(iv) Neither Buyer nor any other Buyer Party shall cause, or commit any act or neglect that causes the Property, or any portion thereof, to become subject to any attachment, 3102/001/109971.10 judgment, lien, charge or encumbrance of any kind. In the event that any lien is placed upon all or any portion of the Property resulting directly or indirectly from, or in connection with, any entry onto the Property (whether or not permitted by this Agreement) by Buyer or any other Buyer Party, Buyer shall, without delay, pay and discharge or bond and discharge such lien. If Buyer fails to do so within ten calendar days after written demand from Seller, Seller shall be entitled to take such steps as Seller deems necessary to discharge and remove the same, including payment of amounts claimed due and owing, and Buyer shall be liable for all such amounts actually paid, and all reasonable costs and expenses relating thereto, including, without limitation, attorneys' fees and costs of litigation.
(v) Buyer shall be fully liable for, and shall immediately repair, any damage, impact, or disturbance to the Property directly or indirectly caused by any acts of Buyer or any other Buyer Party. Buyer shall restore the Property to the condition it was in immediately prior to such damage, impact or disturbance, including, but not limited to, the immediate removal of anything placed on the Real Property by a Buyer Party. Buyer shall without delay inform Seller if a Buyer Party creates a condition on the Property which Buyer reasonably believes will give rise to a liability or claim for damages against Seller or would result in any occurrence or finding which would require notice to any governmental agency under any applicable law. Buyer Parties shall without delay on completion of each test or inspection and testing of or upon the Property fully restore the Property to its condition as existed before any such test or inspection was undertaken.
(vi) Buyer agrees that any entry onto the Real Property by Buyer or other Buyer Party shall be at their own risk. Buyer shall further be responsible for the presence protection of hazardous materialsany or all personal property of Buyer Parties that may be brought onto the Real Property. Buyer, on behalf of itself and for structuralany other Buyer Party, mechanical, seismic, electrical hereby assumes all known and other physical and environmental conditions unknown risks associated with entry onto the Real Property and/or characteristics use of the Property. Such access, inspections, tests and studies shall be permitted and Real Property or activities conducted on the following terms and conditions: Such inspections, tests and studies and Purchaser's access to the Property Real Property. Seller shall be subject to the rights of existing tenants, licensees incur no liability or occupants; Purchaser shall pay for (and be solely responsible for) all inspections, tests and studies ordered by Purchaser and all inspection fees, appraisal fees, engineering fees and other costs and expenses obligation of any kind incurred by Purchaser nature to Buyer or any other Buyer Party as a result of PurchaserBuyer's agentsor any other Buyer Party's entry onto, representativesoccupancy, and/or use of the Real Property or other persons designated activities conducted on the Real Property (whether or not permitted by Purchaser relating to such inspection and its other access this Agreement). Buyer shall be at the sole cost and expense of Purchaser; In connection with any entry by Purchaser or its agentsindemnify, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entry, but in no event less than twenty-four (24) hours notice, which may be verbal, and shall conduct such entry and any inspections in connection therewith so as to minimize interference with Seller's business on, and Seller's tenants' occupancy of, the Property. Furthermore, Purchaser shall only conduct such entry or inspection with a representative of Seller (designated by Seller) present to accompany the Purchaser, unless Seller otherwise agrees, and Seller agrees to have such representative reasonably available; Purchaser shall indemnify defend and hold harmless Seller and the Released Parties (and its officers, directors, shareholders, partners, principals, members, property managers, employees, agents, affiliates and representatives, and any successors or assigns of the foregoingas defined below) harmless from and against all costs, expenses, damages, liabilities, liens or claims, including, without limitation, including reasonable attorneys' fees and court costsrelating thereto, arising from out of or in connection with, any entry onto, occupancy and/or use of the Real Property or the activities conducted on the Real Property (whether or not permitted by Purchaser, its agents, representatives, employees or contractors in the course of performing inspections, tests and/or inquiries provided for under this Agreement) by Buyer or any other Buyer Party, or resulting from any conditions on condition of the Property created by Purchaser's or in connection with any entry and testing (but onto the Real Property by any of the Buyer Parties. The provisions of this paragraph shall not including any claims resulting from be limited by the discovery availability, limits or disclosure coverage of pre-existing physical or environmental conditions on, in, under or about the Property). Furthermore, Purchaser agrees to pay Seller on demand the reasonable cost of repairing and restoring any damage or disturbance which Purchaser insurance carried by Buyer or any of Purchaser's agents, representativesother Buyer Party, or other persons designated by Purchaser required hereunder.
(vii) Buyer shall cause to obtain and maintain, and provide Seller with satisfactory certificates of insurance naming Seller as an additional insured on all policies, with the Property upon receipt of reasonably satisfactory evidence exception of the extent of such damage Worker's Compensation and reasonably satisfactory evidence of Employer's Liability policies, evidencing that Buyer and all other Buyer Parties have in full force and effect, the cost to repair the same, such indemnification shall survive the termination of this Agreement for a period of ten following: 3102/001/109971.10
(10A) months; Prior to conducting any physical inspection or testing at the Property, Purchaser shall obtain, and during the period of such inspection or testing shall maintain, at its sole cost and expense, commercial Commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, with Seller and its managing agent, if any, named as additional insureds, from an insurer reasonably acceptable to Seller, which insurance policies shall have limits coverage for bodily injury and death property damage. Such insurance shall have a combined single limit of not less than Three One Million Dollars ($3,000,0001,000,000) for any one per occurrence and not less than Three with a Two Million Dollars ($3,000,0002,000,000) for aggregate limit and excess umbrella liability insurance in the amount of Two Million Dollars ($2,000,000); and
(B) Business automobile liability coverage insuring bodily injury and property damage liability with a combined single limit of not less than One Million Dollars ($1,000,000) per accident for any one occurrence. Prior to making any owned, non-owned and hired vehicles.
(viii) Buyer further agrees that:
(A) Any entry upon onto the Real Property, Purchaser shall furnish to Seller a certificate of insurance and a copy of the insurance policy evidencing the foregoing coverages. Purchaser's obligation to obtain and maintain such insurance shall survive the termination of this Agreement for a period of ten (10) months; In conducting any or inspection or investigation of the Property or otherwise accessing the Property, Purchaser shall be conducted only upon at all times comply with all laws and regulations of all applicable governmental authorities; In the event that Closing hereunder shall not occur for any reason whatsoever, Purchaser shall promptly return least forty-eight (48) hours' prior written notice to Seller copies of all due diligence materials delivered by Seller to Purchaser and shall destroy all copies and abstracts thereof, however the delivery of such items shall in no event be a condition to the return of the through Seller's designated representative (▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Money to Purchaser; and Notwithstanding anything ▇▇▇, telephone number: (▇▇▇) ▇▇▇-▇▇▇▇, email address: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇) and, if required by Seller, in the presence of a representative of Seller.
(B) Buyer Parties may not contact or have any discussions about the Property with any tenant, licensee, property manager, leasing agent, service contractor, contractor, lien holder or other party with any interest in or contractual relationship with respect to the contrary set forth hereinProperty, Purchaser or any except in the ordinary course of Purchaserbusiness unrelated to Buyer's agents, representatives, or other persons designated by Purchaser shall not be permitted to conduct borings potential purchase of the Property or drilling in or on the Property, or any other invasive testing, in connection with the preparation of an environmental audit or in connection with any other inspection of the Property governmental agent or agencies, without the Seller's prior written consent of Sellerconsent, which consent may be conditioned or withheld at Seller's sole and absolute discretion (and if such consent is given, Purchaser shall be obligated to pay to by Seller on demand the cost of repairing and restoring any such damage). The preceding sentence shall not be deemed to prohibit Purchaser from conducting Phase I environmental site assessments of the Property, Due Diligence Review; Approval. If, prior to the expiration of the Due Diligence Period, based upon such review, examination or inspection, Purchaser determines, in its sole and absolute discretion.
(C) Any proposed entry onto the Property by a Buyer Party shall be subject to Seller's reasonable scheduling requirements.
(D) Buyer Parties shall not provide any documents, for any reason reports or no reason, that it no longer desires to acquire the Property, then Purchaser shall have the right to terminate this Agreement upon written notice to Seller (the "Termination Notice") prior other materials relating to the expiration of the Due Diligence PeriodProperty to any person unless such provision has been approved in writing in advance by Seller, whereupon the ▇▇▇▇▇▇▇ Money promptly shall be returned to Purchaser by the Escrow Agent, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which approval may be provided conditioned or withheld by Seller in its sole discretion. Buyer Parties shall provide Seller or any Seller's Representative (defined below) with any materials, reports, studies or other information about the Property obtained by Buyer or Buyer Parties, other than Confidential and Proprietary Items, only upon Seller's request.
(E) Buyer Parties shall make clear to Escrow Agentany person or group with whom they undertake any discussions that the same are confidential.
(F) Buyer shall give Seller the opportunity to have a representative present at any such discussions or entry onto the Real Property.
(G) Buyer Parties shall observe all appropriate safety precautions, and this Agreementabide by and fully comply with, all laws, statutes, rules, regulations and ordinances now 3102/001/109971.10 11 or hereafter made by any federal, state or local governmental authority, in entering onto the obligations of Real Property or conducting any activities on the parties to purchase and sell the Property hereunder, shall terminate, except that Purchaser's obligations under Sections 4(b)(iv) and 4(b)(vii) above shall survive such termination . If, however, on or before the expiration of the Due Diligence Period, Purchaser determines that the foregoing due diligence matters are acceptable to Purchaser and that it intends to proceed with the acquisition of the Property and the Closing hereunder, then Purchaser shall notify Seller of such determination in writing (the "Approval Notice"). However, if Purchaser fails to deliver a Termination Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, then Purchaser shall be deemed to have elected to proceed to Closing, subject to all of the terms and conditions of this Agreement and the obligations of the parties hereunder shall not terminate, but shall continue in full force and effect. Following the Due Diligence Period, Purchaser shall continue to have the right to enter upon the Real Property, subject to the conditions set forth above, but shall have no further right to terminate this Agreement in connection with any inspections thereafter conducted by Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
ENTRY & INSPECTION. Buyer shall have the right, subject to the provisions of this Section 4(c) and at Buyer's sole expense, to conduct such independent reviews, inspections, and investigations, and other customary analyses and studies, as Buyer, in its discretion, deems necessary or appropriate concerning Buyer's acquisition, ownership and intended use of the Property or the suitability and acceptability of the Property for Buyer's intended purposes. During the Due Diligence Period, and thereafter so long as this Agreement has not been terminated as provided herein, Seller shall provide Purchaser Buyer, its officers, directors, employees, agents, consultants and contractors (individually, a "Buyer Party" and collectively, "Buyer Parties") with reasonable access to the PropertyProperty for the purpose of conducting reviews, in accordance with the terms inspections and conditions of investigations pursuant to this Section 4(b4(c). Buyer agrees that in conducting such reviews, in order for Purchaser inspections and investigations:
(i) No Buyer Party shall conduct, or cause to conduct such inspectionsbe conducted, tests and studies as Purchaser may elect any testing, boring, destruction, removal or opening of any portion of the physical condition Land or the Improvements, including without limitation, any environmental testing or any collection of asbestos, water, radon, soil or air samples, without the specific prior written consent of Seller, which consent may be conditioned or withheld by Seller in its sole discretion. No Buyer Party shall disturb any asbestos that may be on or in the Property. 3102/001/106725
(ii) Buyer Parties shall not damage any part of the Property or any property owned or held by any tenant or third party.
(iii) Buyer acknowledges and agrees that its inspection rights hereunder shall be subject to the rights of any and all tenants occupying the Property and the rights of any person held under any grant of easement or other document recorded against the Property, including, without limitation, inspection the right of quiet enjoyment. Buyer Parties shall not interfere with the use or occupancy of the Real Property by any tenant, licensee, property manager, leasing agent, service contractor, contractor, or invitee.
(iv) Buyer Parties shall promptly pay when due the costs of all tests, investigations and testing for the presence of hazardous materials, and for structural, mechanical, seismic, electrical and other physical and environmental conditions and/or characteristics of examinations done with regard to the Property. Such accessNeither Buyer nor any other Buyer Party shall cause, inspectionsor commit any act or neglect that causes the Property, tests or any portion thereof, to become subject to any attachment, judgment, lien, charge or encumbrance of any kind. In the event that any lien is placed upon all or any portion of the Property resulting directly or indirectly from, or in connection with, any entry onto the Property (whether or not permitted by this Agreement) by Buyer or any other Buyer Party, Buyer shall pay and studies discharge or bond and discharge such lien within five calendar days after the attachment of such lien. If Buyer fails to do so within ten calendar days after written demand from Seller, Seller shall be permitted entitled to take such steps as Seller deems necessary to discharge and remove the same, including payment of amounts claimed due and owing, and Buyer shall be liable for all such amounts paid, and all costs and expenses relating thereto, including, without limitation, reasonable attorneys' fees and costs of litigation.
(v) Buyer shall be fully liable for, and shall immediately repair, any damage, impact, or disturbance to the Property directly or indirectly caused by any acts of Buyer or any other Buyer Party. Buyer shall restore the Property to the condition it was in immediately prior to such damage, impact or disturbance, including, but not limited to, the immediate removal of anything placed on the Real Property by a Buyer Party. Buyer shall immediately inform Seller if a Buyer Party creates a condition on the Property which Buyer reasonably believes will give rise to a liability or claim for damages against Seller or would result in any occurrence or finding which would require notice to any governmental agency under any applicable law. Buyer Parties shall immediately on completion of each test or inspection of or upon the Property fully restore the Property to its condition as existed before any such test or inspection was undertaken.
(vi) Buyer agrees that any entry onto the Real Property by Buyer or other Buyer Party shall be at their own risk. Buyer shall further be responsible for the protection of any or all personal property of Buyer Parties that may be brought onto the Real Property. Buyer, on behalf of itself and any other Buyer Party, hereby assumes all known and unknown risks associated with entry onto the Real Property and/or use of the Real Property or activities conducted on the following terms and conditions: Such inspections, tests and studies and Purchaser's access to the Property Real Property. Seller shall be subject to the rights of existing tenants, licensees incur no liability or occupants; Purchaser shall pay for (and be solely responsible for) all inspections, tests and studies ordered by Purchaser and all inspection fees, appraisal fees, engineering fees and other costs and expenses obligation of any kind incurred by Purchaser nature to Buyer or any other Buyer Party as a result of PurchaserBuyer's agentsor any other Buyer Party's entry onto, representativesoccupancy, and/or use of the Real Property or other persons designated activities conducted on the Real Property (whether or not permitted by Purchaser relating to such inspection and its other access this Agreement). Buyer shall be at the sole cost and expense of Purchaser; In connection with any entry by Purchaser or its agentsindemnify, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entry, but in no event less than twenty-four (24) hours notice, which may be verbal, and shall conduct such entry and any inspections in connection therewith so as to minimize interference with Seller's business on, and Seller's tenants' occupancy of, the Property. Furthermore, Purchaser shall only conduct such entry or inspection with a representative of Seller (designated by Seller) present to accompany the Purchaser, unless Seller otherwise agrees, and Seller agrees to have such representative reasonably available; Purchaser shall indemnify defend and hold 3102/001/106725 harmless Seller and the Released Parties (and its officers, directors, shareholders, partners, principals, members, property managers, employees, agents, affiliates and representatives, and any successors or assigns of the foregoingas defined below) harmless from and against all costs, expenses, damages, liabilities, liens or claims, including, without limitation, including reasonable attorneys' fees and court costsrelating thereto, arising from out of or in connection with, any entry onto, occupancy and/or use of the Real Property or the activities conducted on the Real Property (whether or not permitted by Purchaser, its agents, representatives, employees or contractors in the course of performing inspections, tests and/or inquiries provided for under this Agreement) by Buyer or any other Buyer Party, or resulting from any conditions on condition of the Property created by Purchaser's or in connection with any entry and testing (but onto the Real Property by any of the Buyer Parties. The provisions of this paragraph shall not including any claims resulting from be limited by the discovery availability, limits or disclosure coverage of pre-existing physical or environmental conditions on, in, under or about the Property). Furthermore, Purchaser agrees to pay Seller on demand the reasonable cost of repairing and restoring any damage or disturbance which Purchaser insurance carried by Buyer or any of Purchaser's agents, representativesother Buyer Party, or other persons designated by Purchaser required hereunder.
(vii) Buyer shall cause to obtain and maintain, and provide Seller with satisfactory certificates of insurance naming Seller as an additional insured on all policies, with the Property upon receipt of reasonably satisfactory evidence exception of the extent of such damage Worker's Compensation and reasonably satisfactory evidence of Employer's Liability policies, evidencing that Buyer and all other Buyer Parties have in full force and effect, the cost to repair the same, such indemnification shall survive the termination of this Agreement for a period of ten following:
(10A) months; Prior to conducting any physical inspection or testing at the Property, Purchaser shall obtain, and during the period of such inspection or testing shall maintain, at its sole cost and expense, commercial Commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, with Seller and its managing agent, if any, named as additional insureds, from an insurer reasonably acceptable to Seller, which insurance policies shall have limits coverage for bodily injury and death property damage. Such insurance shall have a combined single limit of not less than Three One Million Dollars ($3,000,0001,000,000) for any one per occurrence and not less than Three with a Two Million Dollars ($3,000,0002,000,000) for aggregate limit and excess umbrella liability insurance in the amount of Two Million Dollars ($2,000,000); and
(B) Business automobile liability coverage insuring bodily injury and property damage liability with a combined single limit of not less than One Million Dollars ($1,000,000) per accident for any one occurrence. Prior to making any owned, non-owned and hired vehicles.
(viii) Buyer further agrees that:
(A) Any entry upon onto the Real Property, Purchaser shall furnish to Seller a certificate of insurance and a copy of the insurance policy evidencing the foregoing coverages. Purchaser's obligation to obtain and maintain such insurance shall survive the termination of this Agreement for a period of ten (10) months; In conducting any or inspection or investigation of the Property or otherwise accessing the Property, Purchaser shall be conducted only upon at all times comply with all laws and regulations of all applicable governmental authorities; In the event that Closing hereunder shall not occur for any reason whatsoever, Purchaser shall promptly return least forty-eight (48) hours' prior written notice to Seller copies of all due diligence materials delivered by Seller to Purchaser and shall destroy all copies and abstracts thereof, however the delivery of such items shall in no event be a condition to the return of the through Seller's designated representative (▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Money to Purchaser; and Notwithstanding anything ▇▇▇, telephone number: (▇▇▇) ▇▇▇-▇▇▇▇, email address: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇) and, if required by Seller, in the presence of a representative of Seller.
(B) Buyer Parties may not contact or have any discussions about the Property with any tenant, licensee, property manager, leasing agent, service contractor, contractor, lien holder or other party with any interest in or contractual relationship with respect to the contrary set forth hereinProperty, Purchaser or any except in the ordinary course of Purchaserbusiness unrelated to Buyer's agents, representatives, or other persons designated by Purchaser shall not be permitted to conduct borings potential purchase of the Property or drilling in or on the Property, or any other invasive testing, in connection with the preparation of an environmental audit or in connection with any other inspection of the Property governmental agent or agencies, without the Seller's prior written consent of Sellerconsent, which consent may be conditioned or withheld at Seller's sole and absolute discretion (and if such consent is given, Purchaser shall be obligated to pay to by Seller on demand the cost of repairing and restoring any such damage). The preceding sentence shall not be deemed to prohibit Purchaser from conducting Phase I environmental site assessments of the Property, Due Diligence Review; Approval. If, prior to the expiration of the Due Diligence Period, based upon such review, examination or inspection, Purchaser determines, in its sole and absolute discretion.
(C) Any proposed entry onto the Property by a Buyer Party shall be subject to Seller's reasonable scheduling requirements.
(D) Buyer Parties shall not provide any documents, for any reason reports or no reason, that it no longer desires to acquire the Property, then Purchaser shall have the right to terminate this Agreement upon written notice to Seller (the "Termination Notice") prior other materials relating to the expiration of the Due Diligence PeriodProperty to any person unless such provision has been approved in 3102/001/106725 writing in advance by Seller, whereupon the ▇▇▇▇▇▇▇ Money promptly shall be returned to Purchaser by the Escrow Agent, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which approval may be provided conditioned or withheld by Seller in its sole discretion. Buyer Parties shall provide Seller or any Seller's Representative (defined below) with any materials, reports, studies or other information about the Property obtained by Buyer or Buyer Parties only upon Seller's request.
(E) Buyer Parties shall make clear to Escrow Agentany person or group with whom they undertake any discussions that the same are confidential.
(F) Buyer shall give Seller the opportunity to have a representative present at any such discussions or entry onto the Real Property.
(G) Buyer Parties shall observe all appropriate safety precautions, and this Agreementabide by and fully comply with, all laws, statutes, rules, regulations and ordinances now or hereafter made by any federal, state or local governmental authority, in entering onto the obligations of Real Property or conducting any activities on the parties to purchase and sell the Property hereunder, shall terminate, except that Purchaser's obligations under Sections 4(b)(iv) and 4(b)(vii) above shall survive such termination . If, however, on or before the expiration of the Due Diligence Period, Purchaser determines that the foregoing due diligence matters are acceptable to Purchaser and that it intends to proceed with the acquisition of the Property and the Closing hereunder, then Purchaser shall notify Seller of such determination in writing (the "Approval Notice"). However, if Purchaser fails to deliver a Termination Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, then Purchaser shall be deemed to have elected to proceed to Closing, subject to all of the terms and conditions of this Agreement and the obligations of the parties hereunder shall not terminate, but shall continue in full force and effect. Following the Due Diligence Period, Purchaser shall continue to have the right to enter upon the Real Property, subject to the conditions set forth above, but shall have no further right to terminate this Agreement in connection with any inspections thereafter conducted by Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
ENTRY & INSPECTION. Buyer shall have the right, subject to the provisions of this Section 4(c) and at Buyer's sole expense, to conduct such independent reviews, inspections, and investigations, and other customary analyses and studies, as Buyer, in its discretion, deems necessary or appropriate concerning Buyer's acquisition, ownership and intended use of the Property or the suitability and acceptability of the Property for Buyer's intended purposes. During the Due Diligence Period, and thereafter so long as this Agreement has not been terminated as provided herein, Seller shall provide Purchaser Buyer, its officers, directors, employees, agents, consultants and contractors (individually, a "Buyer Party" and collectively, "Buyer Parties") with reasonable access to the PropertyProperty for the purpose of conducting reviews, in accordance with the terms inspections and conditions of investigations pursuant to this Section 4(b4(c). Buyer agrees that in conducting such reviews, in order for Purchaser inspections and investigations:
(i) No Buyer Party shall conduct, or cause to conduct such inspectionsbe conducted, tests and studies as Purchaser may elect any testing, boring, destruction, removal or opening of any portion of the physical condition Land or the Improvements, including without limitation, any environmental testing or any collection of asbestos, water, radon, soil or air samples, without the specific prior written consent of Seller, which consent may be conditioned or withheld by Seller in its reasonable discretion. No Buyer Party shall disturb any asbestos that may be on or in the Property.
(ii) Buyer Parties shall not damage any part of the Property or any property owned or held by any tenant or third party.
(iii) Buyer acknowledges and agrees that its inspection rights hereunder shall be subject to the rights of any and all tenants occupying the Property and the rights of any person held under any grant of easement or other document recorded against the Property, including, without limitation, inspection the right of quiet enjoyment. Buyer Parties shall not interfere with the use or occupancy of the Real Property by any tenant, licensee, property manager, leasing agent, service contractor, contractor or invitee.
(iv) Buyer Parties shall promptly pay when due the costs of all tests, investigations and testing for the presence of hazardous materials, and for structural, mechanical, seismic, electrical and other physical and environmental conditions and/or characteristics of examinations done with regard to the Property. Such accessNeither Buyer nor any other Buyer Party shall cause, inspectionsor commit any act or neglect that causes the Property, tests or any portion thereof, to become subject to any attachment, judgment, lien, charge or encumbrance of any kind. In the event that any lien is placed upon all or any portion of the Property resulting directly or indirectly from, or in connection with, any entry onto the Property (whether or not permitted by this Agreement) by Buyer or any other Buyer Party, Buyer shall pay and studies discharge or bond and discharge such lien within five calendar days after the attachment of such lien. If Buyer fails to do so within ten calendar days after written demand from Seller, Seller shall be permitted entitled to take such steps as Seller deems necessary to discharge and remove the same, including payment of amounts claimed due and owing, and Buyer shall be liable for all such amounts paid, and all costs and expenses relating thereto, including, without limitation, reasonable attorneys' fees and costs of litigation.
(v) Buyer shall be fully liable for, and shall immediately repair, any damage, impact, or disturbance to the Property directly or indirectly caused by any acts of Buyer or any other Buyer Party. Buyer shall restore the Property to the condition it was in immediately prior to such damage, impact or disturbance, including, but not limited to, the immediate removal of anything placed on the Real Property by a Buyer Party. Buyer shall immediately inform Seller if a Buyer Party creates a condition on the Property which Buyer reasonably believes will give rise to a liability or claim for damages against Seller or would result in any occurrence or finding which would require notice to any governmental agency under any applicable law. Buyer Parties shall immediately on completion of each test or inspection of or upon the Property fully restore the Property to its condition as existed before any such test or inspection was undertaken.
(vi) Buyer agrees that any entry onto the Real Property by Buyer or other Buyer Party shall be at their own risk. Buyer shall further be responsible for the protection of any or all personal property of Buyer Parties that may be brought onto the Real Property. Buyer, on behalf of itself and any other Buyer Party, hereby assumes all known and unknown risks associated with entry onto the Real Property and/or use of the Real Property or activities conducted on the following terms and conditions: Such inspections, tests and studies and Purchaser's access to the Property Real Property. Seller shall be subject to the rights of existing tenants, licensees incur no liability or occupants; Purchaser shall pay for (and be solely responsible for) all inspections, tests and studies ordered by Purchaser and all inspection fees, appraisal fees, engineering fees and other costs and expenses obligation of any kind incurred by Purchaser nature to Buyer or any other Buyer Party as a result of PurchaserBuyer's agentsor any other Buyer Party's entry onto, representativesoccupancy, and/or use of the Real Property or other persons designated activities conducted on the Real Property (whether or not permitted by Purchaser relating to such inspection and its other access this Agreement). Buyer shall be at the sole cost and expense of Purchaser; In connection with any entry by Purchaser or its agentsindemnify, employees or contractors onto the Property, Purchaser shall give Seller reasonable advance notice of such entry, but in no event less than twenty-four (24) hours notice, which may be verbal, and shall conduct such entry and any inspections in connection therewith so as to minimize interference with Seller's business on, and Seller's tenants' occupancy of, the Property. Furthermore, Purchaser shall only conduct such entry or inspection with a representative of Seller (designated by Seller) present to accompany the Purchaser, unless Seller otherwise agrees, and Seller agrees to have such representative reasonably available; Purchaser shall indemnify defend and hold harmless Seller and the Released Parties (and its officers, directors, shareholders, partners, principals, members, property managers, employees, agents, affiliates and representatives, and any successors or assigns of the foregoingas defined below) harmless from and against all costs, expenses, damages, liabilities, liens or claims, including, without limitation, including reasonable attorneys' fees and court costsrelating thereto, arising from out of or in connection with, any entry onto, occupancy and/or use of the Real Property or the activities conducted on the Real Property (whether or not permitted by Purchaser, its agents, representatives, employees or contractors in the course of performing inspections, tests and/or inquiries provided for under this Agreement) by Buyer or any other Buyer Party, or resulting from any conditions on condition of the Property created by Purchaser's or in connection with any entry and testing (but onto the Real Property by any of the Buyer Parties. The provisions of this paragraph shall not including any claims resulting from be limited by the discovery availability, limits or disclosure coverage of pre-existing physical or environmental conditions on, in, under or about the Property). Furthermore, Purchaser agrees to pay Seller on demand the reasonable cost of repairing and restoring any damage or disturbance which Purchaser insurance carried by Buyer or any of Purchaser's agents, representativesother Buyer Party, or other persons designated by Purchaser required hereunder.
(vii) Buyer shall cause to obtain and maintain, and provide Seller with satisfactory certificates of insurance naming Seller as an additional insured on all policies, with the Property upon receipt of reasonably satisfactory evidence exception of the extent of such damage Worker's Compensation and reasonably satisfactory evidence of Employer's Liability policies, evidencing that Buyer and all other Buyer Parties have in full force and effect, the cost to repair the same, such indemnification shall survive the termination of this Agreement for a period of ten following:
(10A) months; Prior to conducting any physical inspection or testing at the Property, Purchaser shall obtain, and during the period of such inspection or testing shall maintain, at its sole cost and expense, commercial Commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, with Seller and its managing agent, if any, named as additional insureds, from an insurer reasonably acceptable to Seller, which insurance policies shall have limits coverage for bodily injury and death property damage. Such insurance shall have a combined single limit of not less than Three One Million Dollars ($3,000,0001,000,000) for any one per occurrence and not less than Three with a Two Million Dollars ($3,000,0002,000,000) for aggregate limit and excess umbrella liability insurance in the amount of Two Million Dollars ($2,000,000); and
(B) Business automobile liability coverage insuring bodily injury and property damage liability with a combined single limit of not less than One Million Dollars ($1,000,000) per accident for any one occurrence. Prior to making any owned, non-owned and hired vehicles.
(viii) Buyer further agrees that:
(A) Any entry upon onto the Real Property, Purchaser shall furnish to Seller a certificate of insurance and a copy of the insurance policy evidencing the foregoing coverages. Purchaser's obligation to obtain and maintain such insurance shall survive the termination of this Agreement for a period of ten (10) months; In conducting any or inspection or investigation of the Property or otherwise accessing the Property, Purchaser shall be conducted only upon at all times comply with all laws and regulations of all applicable governmental authorities; In the event that Closing hereunder shall not occur for any reason whatsoever, Purchaser shall promptly return least twenty-four (24) hours' prior written notice to Seller copies of all due diligence materials delivered by Seller to Purchaser and shall destroy all copies and abstracts thereofthrough Seller's designated representative (▇▇▇▇ ▇▇▇▇▇, however the delivery of such items shall in no event be a condition to the return of the telephone number: (808) 544‑1226, email address: ▇▇▇▇▇▇▇ Money to Purchaser; and Notwithstanding anything to @▇▇▇▇▇▇▇.▇▇▇) and, if required by Seller, in the contrary set forth hereinpresence of a representative of Seller.
(B) Buyer Parties may not contact or have any discussions about the Property with any tenant, Purchaser or any of Purchaser's agentslicensee, representativesproperty manager, leasing agent, service contractor, contractor, lien holder or other persons designated by Purchaser shall not be permitted to conduct borings of the Property or drilling party with any interest in or on contractual relationship with respect to the Property, or any other invasive testing, except in connection with the preparation ordinary course of an environmental audit or in connection with any other inspection business unrelated to Buyer's potential purchase of the Property Property, without the Seller's prior written consent of Sellerconsent, which consent may be conditioned or withheld at by Seller in its reasonable discretion.
(C) Any proposed entry onto the Property by a Buyer Party shall be subject to Seller's sole and absolute discretion reasonable scheduling requirements.
(and if such consent is given, Purchaser shall be obligated to pay to Seller on demand the cost of repairing and restoring any such damage). The preceding sentence D) Buyer Parties shall not be deemed to prohibit Purchaser from conducting Phase I environmental site assessments of the Propertyprovide any documents, Due Diligence Review; Approval. If, prior reports or other materials relating to the expiration of the Due Diligence PeriodProperty to any person unless such provision has been approved in writing in advance by Seller, based upon such review, examination which approval may be conditioned or inspection, Purchaser determines, withheld by Seller in its sole and absolute discretion. Buyer Parties shall provide Seller or any Seller's Representative (defined below) with any materials, for reports, studies or other information about the Property obtained by Buyer or Buyer Parties only upon Seller's request.
(E) Buyer Parties shall make clear to any reason person or no reason, group with whom they undertake any discussions that it no longer desires the same are confidential.
(F) Buyer shall give Seller the opportunity to acquire have a representative present at any such discussions or entry onto the Real Property, then Purchaser .
(G) Buyer Parties shall have the right to terminate this Agreement upon written notice to Seller (the "Termination Notice") prior to the expiration of the Due Diligence Period, whereupon the ▇▇▇▇▇▇▇ Money promptly shall be returned to Purchaser by the Escrow Agent, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which may be provided by Seller to Escrow Agentobserve all appropriate safety precautions, and this Agreementabide by and fully comply with, all laws, statutes, rules, regulations and ordinances now or hereafter made by any federal, state or local governmental authority, in entering onto the obligations of Real Property or conducting any activities on the parties to purchase and sell the Property hereunder, shall terminate, except that Purchaser's obligations under Sections 4(b)(iv) and 4(b)(vii) above shall survive such termination . If, however, on or before the expiration of the Due Diligence Period, Purchaser determines that the foregoing due diligence matters are acceptable to Purchaser and that it intends to proceed with the acquisition of the Property and the Closing hereunder, then Purchaser shall notify Seller of such determination in writing (the "Approval Notice"). However, if Purchaser fails to deliver a Termination Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, then Purchaser shall be deemed to have elected to proceed to Closing, subject to all of the terms and conditions of this Agreement and the obligations of the parties hereunder shall not terminate, but shall continue in full force and effect. Following the Due Diligence Period, Purchaser shall continue to have the right to enter upon the Real Property, subject to the conditions set forth above, but shall have no further right to terminate this Agreement in connection with any inspections thereafter conducted by Purchaser.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)