Common use of Feasibility Contingency Clause in Contracts

Feasibility Contingency. (a) The obligations of Purchaser under this Contract and consummation of Closing are, in Purchaser’s sole and absolute discretion, subject to Purchaser performing due diligence, completing an inspection of the Property, and determining, in Purchaser’s sole and absolute discretion, that it is feasible for Purchaser to own and operate the Property in a manner and upon terms and conditions satisfactory to Purchaser (collectively, “Due Diligence Activities”). Purchaser will have until 11:59 p.m., Pacific Time, on that date which is two hundred seventy (270) days after the Effective Date (as may be extended pursuant to Section 5(e) below, the “Inspection Period”), to perform such Due Diligence Activities as Purchaser may desire in its sole and absolute discretion, including, but not limited to, invasive testing, such as soil borings, installation of groundwater monitoring ▇▇▇▇▇ and collection of soil and groundwater samples in connection with a Phase II environmental assessment. During the Inspection Period, Purchaser may file applications with applicable governing authorities for approval to plat or replat the Property for its planned development, and to obtain development commitments, entitlements, permits and approvals, all as may be deemed necessary by Purchaser in connection with its contemplated use and development of the Property (collectively, all of the foregoing commitments, entitlements, permits, and approvals are the “Approvals”), and Seller agrees to cooperate with ▇▇▇▇▇▇▇▇▇ and execute such documents reasonably required in connection with the Approvals. Such Approvals will not impose any burden or be binding upon the Property prior to Closing, nor impose any cost or liability on Seller, except to the extent consented to by Seller, which consent will not be unreasonably withheld. (b) Prior to any entry upon the Property by Purchaser, or its contractor, agent, employee, consultant, or other third party at Purchaser’s direction (each, a “Purchaser Consultant”), Purchaser and any Purchaser Consultant entering the Property shall maintain liability insurance coverage issued with combined single limits of not less than $2,000,000 per occurrence which includes Seller as an additional insured on a primary and noncontributory basis, and, if requested by ▇▇▇▇▇▇ in writing, will provide Seller with proof of such coverage. Any Purchaser Consultant that seeks to perform invasive testing or collect samples from the Property shall maintain pollution liability insurance with limits of not less than $2,000,000 and shall provide evidence that Seller is named as an additional insured on such policy prior to entering the Property. (c) Purchaser and Purchaser Consultants may enter upon the Property at all reasonable times during the term of the Contract to conduct engineering, environmental and geotechnical studies or any other inspections or tests. Purchaser will indemnify and hold Seller harmless from and against any and all losses or costs incurred by Seller due to any injuries to persons or damage to the Land or Improvements resulting from such studies, inspections, and/or tests, and if Purchaser fails to close its acquisition of the Property pursuant to this Contract, Purchaser will restore any material damage to the Land or Improvements caused by Purchaser or Purchaser Consultants to a reasonable equivalent of its pre-inspection condition; provided, however, that Purchaser shall not be obligated to indemnify or hold Seller harmless from any losses or costs arising out of or relating to (i) acts or omissions of Seller, its agents, or representatives; (ii) Hazardous Materials (defined below) not first placed on the Property by Purchaser or Purchaser Consultants; or (iii) mere discovery of conditions, facts, or circumstances that adversely affect (or may adversely affect) the value of the Property. Purchaser’s obligations under this Section shall survive termination of this Contract for a period of twelve (12) months. (d) Purchaser may extend the Inspection Period for up to three (3) additional periods of thirty (30) days each by (i) delivering to Seller and Title Company written notice of Purchaser’s election to extend the Inspection Period then in effect, and (ii) depositing with Title Company the sum of $10,000.00 (“Extension Fee”) prior to the expiration of the Inspection Period then in effect. The Title Company shall hold the Extension Fee in a non-interest- bearing account until Closing. The Extension Fee will constitute additional ▇▇▇▇▇▇▇ Money and will be applied against the Purchase Price at Closing but will be non-refundable to Purchaser if Purchaser elects a discretionary termination of the Contract during the Inspection Period as provided in this Section. (e) If Purchaser elects to proceed with Closing, then Purchaser will notify Seller and Title Company in writing (the “Approval Notice”) prior to the expiration of the Inspection Period. Unless the Approval Notice is previously delivered to Seller, upon the expiration of the Inspection Period, Title Company will promptly return the ▇▇▇▇▇▇▇ Money to Purchaser and, provided that Seller is not in default hereunder beyond applicable cure periods, will disburse any Extension Fee on deposit to Seller, and all obligations of the parties under this Contract will terminate, excepting those obligations that expressly survive termination. In addition, if Purchaser notifies Seller during the Inspection Period that it does not intend to proceed with the acquisition of the Property (for any reason or no reason in Purchaser’s sole and absolute discretion), then Title Company will promptly return the ▇▇▇▇▇▇▇ Money to Purchaser and, provided that Seller is not in default hereunder beyond applicable cure periods, will disburse any Extension Fee on deposit to Seller, and all obligations of the parties under this Contract will terminate, except for those obligations that expressly survive termination of this Contract.

Feasibility Contingency. (a) The obligations of Purchaser under this Contract and consummation of Closing are, in Purchaser’s 's sole and absolute discretion, subject to Purchaser performing due diligence, reviewing the Documents, completing an inspection of the Property, and determining, in Purchaser’s 's sole and absolute discretion, that it is feasible for Purchaser to own and operate the Property in a manner and upon terms and conditions satisfactory to Purchaser (collectively, “"Due Diligence Activities”"). Purchaser will have until 11:59 p.m., Pacific Time, on that date which is two hundred seventy (270) 180 days after the Effective Date (as may be extended pursuant to Section 5(e5(d) below, the “"Inspection Period”"), to perform such Due Diligence Activities as Purchaser may desire in its sole and absolute discretion, including, but not limited to, invasive testing, such as soil borings, installation of groundwater monitoring ▇▇▇▇▇ and collection of soil and groundwater samples in connection with a Phase II environmental assessment. Notwithstanding the foregoing, no invasive testing shall be performed without Seller’s prior approval of the scope thereof, with such approval not to be unreasonably withheld, conditioned or delayed; provided, however, if Seller fails to respond to a request for approval within five (5) days, Seller will be deemed to have approved the scope. During the Inspection Period, Purchaser may file applications with applicable governing authorities for approval to plat or replat the Property for its planned development, and to obtain development commitments, entitlements, permits and approvals, all as may be deemed necessary by Purchaser in connection with its contemplated use and development of the Property (collectively, all of the foregoing commitments, entitlements, permits, and approvals are the “"Approvals”"), and Seller agrees to cooperate with ▇▇▇▇▇▇▇▇▇ and execute such documents reasonably required in connection with the Approvals. Such Approvals will not impose any burden or be binding upon the Property prior to Closing, nor impose any cost or liability on Seller, except to the extent consented to by Seller, which consent will not be unreasonably withheld. (b) Prior to any entry upon the Property by Purchaser, or its contractor, agent, employee, consultant, or other third party at Purchaser’s 's direction (each, a “"Purchaser Consultant”"), Purchaser and any Purchaser Consultant entering the Property shall maintain liability insurance coverage issued with combined single limits of not less than $2,000,000 per occurrence occurrence, which limit may be satisfied by any combination of primary and excess or umbrella policies, includes Seller as an additional insured on a primary and noncontributory basis, and, if requested by ▇▇▇▇▇▇ Seller in writing, will provide Seller with proof of such coverage. Any Purchaser Consultant that seeks to perform invasive testing or collect samples from the Property shall maintain pollution liability insurance with limits of not less than $2,000,000 and shall provide evidence that Seller is named as an additional insured on such policy prior to entering the Property. (c) Purchaser and Purchaser Consultants may enter upon the Property at all reasonable times during the term of the Contract to conduct engineering, environmental and geotechnical studies or any other inspections or tests. Purchaser will indemnify indemnify, defend, and hold Seller harmless from and against any and all losses or costs incurred by Seller due to any injuries to persons or damage to the Land or Improvements resulting from such studies, inspections, and/or tests, and if Purchaser fails to close its acquisition of the Property pursuant to this Contract, Purchaser will restore any material damage to the Land or Improvements caused by Purchaser or Purchaser Consultants to a reasonable equivalent of its pre-inspection condition; provided, however, that Purchaser shall not be obligated to indemnify or hold Seller harmless from any losses or costs arising out of or relating to (i) acts or omissions of Seller, its agents, or representatives; (ii) Hazardous Materials (defined below) not first placed on the Property by Purchaser or Purchaser Consultants; or (iii) mere discovery of conditions, facts, or circumstances that adversely affect (or may adversely affect) the value of the Property. Purchaser’s 's obligations under this Section shall survive termination of this Contract for a period of twelve (12) months. (d) Purchaser may extend the Inspection Period for up to three (3) additional periods of thirty (30) days each by (i) delivering to Seller and Title Company written notice of Purchaser’s 's election to extend the Inspection Period then in effect, prior to the expiration of the Inspection Period, and (ii) depositing with Title Company the sum of $10,000.00 (“"Extension Fee”") prior to within three (3) Business Days after the expiration of the Inspection Period then in effect. The Title Company shall hold the Extension Fee in a nonan interest-interest- bearing account until Closing. The Extension Fee (and interest on such Extension Fee) will constitute additional ▇▇▇▇▇▇▇ Money and will be applied against the Purchase Price at Closing Closing, but will be non-refundable to Purchaser if Purchaser elects a discretionary termination of the Contract during the Inspection Period as provided in this Section. (e) If Purchaser elects to proceed with Closing, then Purchaser will notify Seller and Title Company in writing (the “"Approval Notice”") prior to the expiration of the Inspection Period. Unless the Approval Notice is previously delivered to Seller, upon the expiration of the Inspection Period, Title Company will promptly return the ▇▇▇▇▇▇▇ Money to Purchaser and, provided that Seller is not in default hereunder beyond applicable cure periods, will disburse any Extension Fee on deposit to Seller, and all obligations of the parties under this Contract will terminate, excepting those obligations that expressly survive termination. In addition, if Purchaser notifies Seller during the Inspection Period that it does not intend to proceed with the acquisition of the Property (for any reason or no reason in Purchaser’s 's sole and absolute discretion), then Title Company will promptly return the ▇▇▇▇▇▇▇ Money to Purchaser and, provided that Seller is not in default hereunder beyond applicable cure periods, will disburse any Extension Fee on deposit to Seller, and all obligations of the parties under this Contract will terminate, except for those obligations that expressly survive termination of this Contract.