Inspection Period. (a) The Partnership shall have until 5:00 p.m., Atlanta, Georgia time, on the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to inspect the Property and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property and said assumption documents are not suitable for its purposes, in its sole and absolute discretion, and notifies Contributor in writing of such decision prior to the expiration of the Inspection Period, this Agreement shall automatically terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to the expiration of the Inspection Period shall be deemed a waiver by Partnership of its right to terminate this Agreement pursuant to this Section 4(a), and this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense. (b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender; (xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to Partnership.
Appears in 1 contract
Sources: Agreement to Contribute (Vinings Investment Properties Trust/Ga)
Inspection Period. (a) The Partnership Buyer shall have until 5:00 p.m., Atlanta, Georgia time, on thirty-five (35) days after the fifteenth (15th) day immediately following the Trigger Effective Date (as hereinafter defined), within which to inspect the Property and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (such period being herein called the "Inspection Period") in which to order, review and approve all inspections or studies which Buyer may elect to make and address SEC matters pursuant to Section 7.2 (in each case at Buyer's sole risk, cost and expense). If for any reason whatsoever the Partnership determines that , including, without limitation, feasibility, marketing, soils, asbestos, environmental, architectural and engineering studies with respect to the Property and said assumption documents are not suitable for otherwise satisfy itself with the Property pursuant to this Article 5. This Contract shall terminate upon the end of the Inspection Period unless Buyer delivers written notice (the "Notice of Acceptance") to Seller on or before 4:00 p.m. MST on the last day of the Inspection Period stating that Buyer waives its purposesright of termination pursuant to this Article 5. Buyer may also terminate this Contract by the end of the Inspection Period by delivering written notice to Seller on or before 4:00 p.m. MST on the last day of the Inspection Period stating that Buyer terminates this Contract pursuant to this Article 5. Unless Buyer timely provides the Notice of Acceptance to Seller, in its sole and absolute discretionwriting, and notifies Contributor in writing of such decision prior to on or before the expiration end of the Inspection Period, this Agreement Contract shall automatically terminate and be terminated. In the event Buyer timely delivers its Notice of Termination or is deemed to have terminated this Contract, the Contract shall be terminated. Upon such termination pursuant to this Section 5.1, the ▇▇▇▇▇▇▇ Money shall be returned to PartnershipBuyer, less One Hundred Dollars ($100.00)subject to Buyer's compliance with Section 9.3, which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreementand, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to the expiration of the Inspection Period shall be deemed a waiver by Partnership of its right to terminate this Agreement pursuant to this Section 4(a), and this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this AgreementContract, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies neither of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership parties shall have received both the last any further liability or obligation under this Contract. Any attempt by Buyer to exercise such right of the items described termination after such date and time as provided in this Section 4(b) 5.1 shall be of no force or effect and a written notice from Contributor stating it will be deemed that Buyer is satisfied with the item(s) accompanying said written notice are the last condition of the items described Property (including the physical condition of the Improvements and the environmental condition of the Land and the Improvements), as well as the other matters specified in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to Partnership5.1.
Appears in 1 contract
Sources: Contract of Sale (Cole Credit Property Trust II Inc)
Inspection Period. (a) The Partnership shall have until 5:00 p.m., Atlanta, Georgia time, on Purchaser acknowledges that Seller provided Purchaser the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which opportunity to inspect conduct such due diligence and inspections of the Property as Purchaser and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property its officers, directors, employees and said assumption documents are not suitable for its purposes, in its sole advisers deemed necessary and absolute discretion, and notifies Contributor in writing of such decision appropriate prior to the expiration of Effective Date. Any and all references to the “Inspection Period, ” in this Agreement shall automatically terminate mean and the ▇▇▇▇▇▇▇ Money refer and shall be returned deemed to Partnershipmean and refer to for all purposes to a period commencing prior to the Effective Date and expiring immediately upon the Effective Date and that, less One Hundred Dollars ($100.00)therefore, which Escrow Agent shall pay to Contributor as due consideration for without limiting the Purchaser’s termination rights expressly set forth in the other provisions of this Agreement, any and thereafter no party hereto shall have any all rights or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to the expiration of the Inspection Period shall be deemed a waiver by Partnership of its right Purchaser to terminate this Agreement pursuant to this Section 4(a)Article IV have terminated and been unconditionally waived and relinquished, and Purchaser has no such right to so terminate this Agreement shall continue in full force pursuant to this Article IV. Notwithstanding the foregoing, from and effect. From after the Effective Date through Date, subject to the expiration terms of the Inspection Periodthis Agreement, Partnership Purchaser and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right be permitted to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, inspect and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of investigate the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plansall Books and Records located at the Property, specificationssubject to Manager’s good faith compliance with Legal Requirements with respect to access to any and all Employee records (collectively, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping“Due Diligence”); (xvii) any documentprovided, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed however, without limiting the Purchaser’s termination rights expressly set forth in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes other provisions of this Agreement, the term "Trigger Date" shall mean Purchaser has no right to terminate this Agreement based on such Due Diligence after the date on which Partnership shall have received both the last expiration of the items described Inspection Period. Purchaser’s Due Diligence shall be subject to the terms, conditions and limitations set forth in this Section 4(b) Article IV, and a written notice from Contributor stating that Purchaser’s conduct shall be in strict compliance with the item(s) accompanying said written notice are the last of the items described covenants and agreements contained in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipArticle IV.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors Inc)
Inspection Period. (a) The Partnership Subject to the indemnification obligations set forth in the following paragraph, Purchaser shall have until 5:00 p.m.p.m. (Los Angeles, Atlanta, Georgia California time, ) on the fifteenth thirtieth (15th30th) day immediately following after the Trigger Date (as hereinafter defined), date hereof within which to inspect the Property (the "Review Period"). During the Review Period, Purchaser shall be entitled to review copies of (i) the Leases, (ii) the most recent real estate tax statements with respect to the Property, (iii) the most recent sewer and review water bills with respect to the assumption documents Property, (iv) the Service Contracts, (v) bills for electricity and for fuel used to be used operate the heating and air conditioning systems controlled by Seller at the Property covering the previous twelve (12) months, (vi) correspondence between tenants and Seller (as landlord), (vii) b▇▇▇▇▇▇▇ to tenants for Tenant Reimbursables and invoices for Tenant Reimbursable Expenses, (viii) any plans for the buildings located on the Property, (ix) any licenses or permits issued to Seller in connection with the assumption ownership and operation of the Lender Loan Property, and (as hereinafter definedx) (any other information relating exclusively to the "Inspection Period")Property or the tenants reasonably requested by Purchaser, all to the extent in Seller's possession or control. If for any reason whatsoever the Partnership Purchaser determines that the Property and said assumption documents are not suitable is unsuitable for its purposes, in its sole and absolute discretion, purposes and notifies Contributor in writing Seller of such decision prior to within the expiration of the Inspection Review Period, this Agreement shall automatically terminate and the ▇E▇▇▇▇▇▇ Money shall be immediately returned to PartnershipPurchaser, less One Hundred Dollars ($100.00), at which Escrow Agent time this Agreement shall pay to Contributor as due consideration for this Agreement, be null and thereafter no void and neither party hereto shall have any further rights or obligations under this Agreement, except as otherwise specifically for the indemnity obligations set forth hereinin Sections 6 and 8(A) hereof which shall survive termination. PartnershipPurchaser's failure to so notify Contributor prior to object within the expiration of the Inspection Review Period shall be deemed a waiver by Partnership Purchaser of its the condition contained in this Section 8(A). Purchaser's right to terminate this Agreement of inspection pursuant to this Section 4(a), 8(A) shall be subject to the rights of tenants under the Leases and this Agreement shall continue in full force other occupants and effect. From the Effective Date through the expiration users of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives Property. No inspection shall be undertaken without reasonable prior notice to Seller. Seller shall have the right to enter upon be present at any or all inspections. Neither Purchaser nor its agents or representatives shall contact any tenants without the Property at reasonable times to inspectprior consent of Seller, examinewhich will not be unreasonably withheld or delayed, survey, obtain engineering inspections, appraise, and otherwise do provided that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership Seller shall have the right to examine be present for all such tenant interviews. No inspection shall involve the taking of Contributor's bookssamples or other physically invasive procedures without the prior consent of Seller, files and records relating in any way which shall not be unreasonably withheld or delayed. Notwithstanding anything to the Property. Contributor contrary contained in this Agreement, Purchaser shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have restore the right Property to make copies of such books, files and records and its condition existing prior to extract therefrom such information as Partnership may desireits entry thereon, and who shall have the right to audit indemnify, defend and have certified, thoroughly hold Seller and completely, all income its employees and expenses, profits and lossesagents, and operational results each of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset managerthem, harmless from and against any and all losses, claims, demandsdamages and liabilities (including, liabilitieswithout limitation, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoingin connection therewith) arising out of or in any way relating to any damage or injury to any resulting from Purchaser's exercise of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in rights under this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation its right of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease inspection as provided for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last 8(A). The terms of the items described in this Section 4(b8(A) shall survive the termination of this Agreement and that all the Closing for a period of the other items described in this Section 4(bnine (9) have been delivered to Partnershipmonths.
Appears in 1 contract
Inspection Period. (a) The Partnership shall have until 5:00 p.m., Atlanta, Georgia time, on Purchaser acknowledges that Seller provided Purchaser the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which opportunity to inspect conduct such due diligence and inspections of the Property as Purchaser and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property its officers, directors, employees and said assumption documents are not suitable for its purposes, in its sole advisers deemed necessary and absolute discretion, and notifies Contributor in writing of such decision appropriate prior to the expiration of Effective Date. Notwithstanding anything to the contrary herein, any and all references to the “Inspection Period, ” in this Agreement shall automatically terminate mean and the ▇▇▇▇▇▇▇ Money refer and shall be returned deemed to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay mean and refer to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure all purposes to so notify Contributor a period commencing prior to the expiration Effective Date and expiring immediately upon the Effective Date and that, therefore, any and all rights of the Inspection Period shall be deemed a waiver by Partnership of its right Purchaser to terminate this Agreement pursuant to this Section 4(a)in connection with its Due Diligence have terminated and been unconditionally waived and relinquished, and Purchaser has no such right to so terminate this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and connection with its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, Due Diligence (but without limiting Purchaser’s termination rights expressly set forth in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership this Agreement (including, without limitation, inspect, review termination rights set forth in Section 4.7) and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain Deposit shall be non-refundable to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except Purchaser except as otherwise expressly provided in this Agreement). Notwithstanding the foregoing, Partnership does hereby covenant from and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating subject to the Property: (i) all monthly terms of this Agreement, Purchaser and quarterly income its representatives shall be permitted to enter upon the Property during the term of this Agreement to examine, inspect and expense statements for investigate the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (Property including, but not limited to, plansall Books and Records located at the Property, specificationssubject to Manager’s good faith compliance with Legal Requirements with respect to access to any and all Employee records (collectively, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping“Due Diligence”); (xvii) any documentprovided, report or item not specifically enumerated herein but which has been or will however, the Purchaser shall have no right to terminate this Agreement based on such Due Diligence after the expiration of the Inspection Period. Purchaser’s Due Diligence shall be delivered subject to Lender;
(xviii) all documents executed the terms, conditions and limitations set forth in connection this Article IV, and Purchaser’s conduct shall be in strict compliance with the Lender Loan covenants and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described agreements contained in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipArticle IV.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors 2 Inc)
Inspection Period. (a) The Partnership Buyer shall have until 5:00 p.m., Atlanta, Georgia time, on the fifteenth (15th) day immediately following Inspection Period to evaluate any and all matters relating to the Trigger Date (as hereinafter defined), within which to inspect the Property business and review the assumption documents to be used in connection with the assumption properties of the Lender Loan (as hereinafter defined) (Company and the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property and said assumption documents are not suitable for its purposesCompany Subsidiaries, in its sole and absolute discretionincluding title, environmental, and notifies Contributor in writing of such decision prior to the expiration of engineering matters. At any time during the Inspection Period, this Agreement shall automatically terminate Buyer may elect not to proceed with the Merger at Buyer’s sole and absolute option and discretion, for any reason or without any reason whatsoever, by giving written notice thereof to the ▇▇▇▇▇▇▇ Money shall be returned to Partnership, less One Hundred Dollars Company ($100.00“Termination Election”), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto . Unless Buyer shall have any rights given written notice to the Company stating that it has elected to proceed with the Merger on or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to the expiration of the Inspection Period shall be deemed a waiver by Partnership of its right (an “Election to terminate this Agreement pursuant to this Section 4(aProceed”), and this Agreement shall continue in full force automatically terminate at and effect. From the Effective Date through as of the expiration of the Inspection PeriodPeriod as provided in Section 1.8(c).
(b) On or before March 1, Partnership and its agents2007, engineers, surveyors, appraisers, auditors and other representatives the Company shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition provide Buyer with consolidated financial statements of the Property Company as of and for the year ending December 31, 2006. The Company shall deliver to determine the suitability Buyer on or before March 15, 2007 a true and complete copy of the Property audited consolidated balance sheet of the Company as at December 31, 2006 (the “Balance Sheet”) and the audited consolidated statements of income for the uses intended by Partnership 12 months ended December 31, 2006 (includingtogether with the Balance Sheet, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain “Audited Financial Information”).
(c) In the event Buyer delivers a Termination Election to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through Company prior to the expiration of the Inspection Period, Partnership shall have the right Period or Buyer fails to examine all of Contributor's books, files and records relating in any way deliver an Election to Proceed prior to the Property. Contributor expiration of the Inspection Period (A) this Agreement shall make automatically terminate without any further action by any party hereto, (B) all materials supplied by the Company to Buyer shall be returned promptly to the Company, or, at Buyer’s option, destroyed by Buyer with Buyer certifying such booksdestruction to the Company, files (C) each of Buyer and records available for examination by Partnership the Company shall, as promptly as practicable, execute and Partnership's agents and representatives, who shall have deliver an Expiration Notice (as such term is defined in the right Deposit Agreement) to make copies the Deposit Agent in accordance with the terms of such books, files and records and to extract therefrom such information as Partnership may desirethe Deposit Agreement, and who shall have the right to audit (D) each party will be relieved of all other rights, obligations and have certifiedliabilities hereunder, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements except for the Property; (ii) all audited annual financial statements for the Property; (iii) the real parties’ obligations pursuant to Sections 1.9, 5.2 and personal property tax assessments 8.2 and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipArticle IX.
Appears in 1 contract
Inspection Period. (a) The Partnership shall have until 5:00 p.m., Atlanta, Georgia time, on Purchaser acknowledges that Seller provided Purchaser the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which opportunity to inspect conduct such due diligence and inspections of the Property as Purchaser and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property its officers, directors, employees and said assumption documents are not suitable for its purposes, in its sole advisers deemed necessary and absolute discretion, and notifies Contributor in writing of such decision appropriate prior to the expiration of Effective Date. Notwithstanding anything to the contrary herein, any and all references to the “Inspection Period, ” in this Agreement shall automatically terminate mean and the ▇▇▇▇▇▇▇ Money refer and shall be returned deemed to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay mean and refer to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure all purposes to so notify Contributor a period commencing prior to the expiration Effective Date and expiring immediately upon the Effective Date and that, therefore, any and all rights of the Inspection Period shall be deemed a waiver by Partnership of its right Purchaser to terminate this Agreement pursuant to this Section 4(a)Article IV have terminated and been unconditionally waived and relinquished, and Purchaser has no such right to so terminate this Agreement shall continue in full force pursuant to this Article IV. Notwithstanding the foregoing, from and effect. From after the Effective Date through Date, subject to the expiration terms of the Inspection Periodthis Agreement, Partnership Purchaser and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right be permitted to enter upon the Property at reasonable times during the term of this Agreement to inspect, examine, survey, obtain engineering inspections, appraise, inspect and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of investigate the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plansall Books and Records located at the Property, specificationssubject to Manager’s good faith compliance with Legal Requirements with respect to access to any and all Employee records (collectively, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping“Due Diligence”); (xvii) any documentprovided, report or item not specifically enumerated herein but which has been or will however, the Purchaser shall have no right to terminate this Agreement based on such Due Diligence after the expiration of the Inspection Period. Purchaser’s Due Diligence shall be delivered subject to Lender;
(xviii) all documents executed the terms, conditions and limitations set forth in connection this Article IV, and Purchaser’s conduct shall be in strict compliance with the Lender Loan covenants and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described agreements contained in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipArticle IV.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors Inc)
Inspection Period. (a) The Partnership 5.01 Purchaser shall have until 5:00 p.m.sixty (60) days from the Effective Date, Atlanta, Georgia time, on the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to inspect the Property and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"), to conduct engineering, feasibility and such other studies and investigations concerning the property being acquired as it desires (the “Investigation Period”). If for any reason whatsoever During the Partnership determines that Investigation Period, Purchaser shall be provided with full access to the Property and said assumption documents are not suitable for as deemed necessary by the inspecting party. Purchaser and/or its purposes, in its sole and absolute discretion, and notifies Contributor in writing of such decision prior to the expiration of the Inspection Period, this Agreement shall automatically terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to the expiration of the Inspection Period shall be deemed a waiver by Partnership of its right to terminate this Agreement pursuant to this Section 4(a), and this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to designated agents may enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property applicable property for the uses intended by Partnership (includingpurpose of soil analysis, without limitationcore drilling, inspectstructural examination and tests, review or other studies, tests, examinations and copy any and all documents in investigations which may be deemed necessary. During the possession or control of Contributor, its agents, contractors or employees, and which pertain to Investigation Period the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby parties agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or cooperate fully with one another in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor order that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which each may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) obtain copies of all Certificates of Occupancy for documents pertaining to the Property; (xvi) all construction documents including site plansproperty being acquired, zoning approvals, building permits, plans and specifications (including, but not limited to, plats, site plans, specificationssurveys, drawings permits, licenses, approvals, and designs environmental reports. If for architecturalany reason, civilor no reason, structural, mechanical, electrical, plumbing and landscaping); Purchaser determines during the Investigation Period (xviiin its sole discretion) any document, report or item that it does not specifically enumerated herein but which has been or will be delivered desire to Lender;
(xviii) all documents executed in connection proceed with the Lender Loan transaction (the “Terminating Party”), then no later than the expiration of the Investigation Period, the Terminating Party shall notify the other party that it has elected not to proceed and desires to terminate this Agreement, and the parties shall be relieved of all documents liability under this Agreement. If Purchaser fails to provide to Seller notice that it has elected not to proceed on or before 5:00 p.m. on the last day of the Investigation Period, then Purchaser shall be used deemed to have elected to proceed and shall have no further right to terminate this Agreement under this Section. In the event this Agreement fails to close for any reason, to the extent Purchaser’s inspections resulted in connection with Partnership's assumption thereofalterations of the Property, Purchaser shall restore the property to the condition existing prior to the inspections. For purposes To the extent permitted by Florida law, Purchaser agrees to indemnify and hold the Seller harmless against any property damage or personal injury or claim of lien against resulting from the activities permitted by this Section (including, without limitation, reasonable attorneys’ fees and expenses paid or incurred by the other party during litigation, if any). Liability under the foregoing indemnity shall survive the Closing and any termination of this Agreement, .
5.02 Purchaser understands and acknowledges that it will inspect the term "Trigger Date" shall mean the date Property and will rely solely on which Partnership shall have received both the last its own investigations of the items described in Property and not on any information provided or to be provided by the other party, except as otherwise provided herein. Purchaser acknowledges that any documents provided to it pursuant to this Section 4(b) or any prior survey provided were obtained from a variety of sources and a written notice from Contributor stating that the item(s) accompanying said written notice are Seller has not made any independent investigation or verification of such information and does not make any representations as to the last accuracy or completeness of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to Partnershipsuch information.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Inspection Period. (a) The Partnership 5.01 Purchaser shall have until 5:00 p.m.sixty (60) days from the Effective Date, Atlanta, Georgia time, on the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to inspect the Property and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"), to conduct engineering, feasibility and such other studies and investigations concerning the property being acquired as it desires (the “Investigation Period”). During the Investigation Period, Purchaser shall be provided with full access to the Property as deemed necessary by the inspecting party. Purchaser and/or its designated agents may enter upon the applicable property for the purpose of soil analysis, core drilling, structural examination and tests, or other studies, tests, examinations and investigations which may be deemed necessary. During the Investigation Period the parties agree to cooperate fully with one another in order that each may obtain copies of all documents pertaining to the property being acquired, including, but not limited to, plats, site plans, surveys, permits, licenses, approvals, and environmental reports. If for any reason whatsoever reason, or no reason, Purchaser determines during the Partnership determines that the Property and said assumption documents are not suitable for its purposes, Investigation Period (in its sole and absolute discretion) that it does not desire to proceed with the transaction (the “Terminating Party”), and notifies Contributor in writing of such decision prior to then no later than the expiration of the Inspection Investigation Period, the Terminating Party shall notify the other party that it has elected not to proceed and desires to terminate this Agreement, and the parties shall be relieved of all liability under this Agreement. If Purchaser fails to provide to Seller notice that it has elected not to proceed on or before 5:00 p.m. on the last day of the Investigation Period, then Purchaser shall be deemed to have elected to proceed and shall have no further right to terminate this Agreement under this Section. In the event this Agreement fails to close for any reason, to the extent Purchaser’s inspections resulted in alterations of the Property, Purchaser shall automatically terminate and restore the property to the condition existing prior to the inspections. To the extent permitted by Florida law, ▇▇▇▇▇▇▇▇▇ Money shall be returned agrees to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, indemnify and thereafter no party hereto shall have hold the Seller harmless against any rights property damage or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to personal injury or claim of lien against resulting from the expiration of the Inspection Period shall be deemed a waiver activities permitted by Partnership of its right to terminate this Agreement pursuant to this Section 4(a), and this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' ’ fees and expenses paid or incurred on account by the other party during litigation, if any). Liability under the foregoing indemnity shall survive the Closing and any termination of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant .
5.02 Purchaser understands and warrant unto Contributor acknowledges that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about inspect the Property and will promptly remove any lien or judgment which may hereinafter encumber rely solely on its own investigations of the Property and not on any information provided or to be provided by the other party, except as otherwise provided herein. Purchaser acknowledges that any documents provided to it pursuant to this Section or any part thereof on account prior survey provided were obtained from a variety of sources and the Seller has not made any independent investigation or verification of such failure to pay such expense.
(b) As soon information and does not make any representations as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof accuracy or completeness of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to Partnershipsuch information.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Inspection Period. The definition of "Inspection Period" as contained in SECTION 1 of the Contract is hereby amended to provide that the Inspection Period will expire at 5:00 p.m., Dallas, Texas time on Friday, May 21, 2004. Notwithstanding anything contained herein to the contrary, Purchaser hereby acknowledges that as of the Effective Date of this Amendment, (a) The Partnership shall have until 5:00 p.m.except as expressly provided on EXHIBIT A attached hereto, Atlanta, Georgia time, on Purchaser has approved the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to inspect the Property and review the assumption documents to be used in connection with the assumption condition of the Lender Loan Property, (as hereinafter definedb) Purchaser hereby waives any and all claims and rights whatsoever to terminate the Contract pursuant to SECTION 6.3 thereof except for those issues shown on EXHIBIT A, and (c) that the "Inspection Period is being extended solely to allow Seller and Purchaser to resolve the issues set form on EXHIBIT A. In the event that any of such issues are not resolved on or before the expiration of the Inspection Period"). If for any reason whatsoever the Partnership determines that the Property and said assumption documents are not suitable for its purposes, in its sole and absolute discretionas so extended, and notifies Contributor in writing of such decision Purchaser must elect to either (i) terminate this Agreement by written notice delivered to Seller prior to the expiration of the Inspection Period, this Agreement as so extended (which written notice shall automatically terminate and specifically set forth Purchaser's reason(s) for termination), in which case Escrow Agent will return the ▇▇▇▇▇▇▇ Money shall be returned to PartnershipPurchaser, less One Hundred Dollars or ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, ii) waive such unresolved issue(s) and thereafter no party hereto shall have any rights or obligations under this Agreement, except as otherwise specifically set forth hereinproceed toward Closing. Partnership's failure to so notify Contributor If Purchaser does not deliver the written notice of termination prior to the expiration of the Inspection Period Period, Purchaser shall be deemed a waiver by Partnership of its right to have waived any and all claims or rights whatsoever to terminate this Agreement pursuant to this Section 4(a)SECTION 6.3 of the Contract, and this Agreement shall continue in full force Seller and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it Purchaser will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection proceed with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipClosing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Inspection Period. (a) The Operating Partnership shall have until 5:00 p.m., Atlanta, Georgia time, on a period of thirty (30) days from and after the fifteenth date of this Agreement (15ththe "DUE DILIGENCE PERIOD") day immediately following the Trigger Date (as hereinafter defined), within which to cause one or more surveyors, attorneys, engineers, auditors, architects, and/or other experts of its choice (i) to inspect the Property any document related to any Property, including, without limitation, all Leases and review the assumption documents related documents, working drawings, plans and specifications, surveys, appraisals, engineer's reports, environmental reports, insurance policies, service contracts, real estate tax receipts and annual and monthly operating statements, and (ii) to be used in connection inspect, examine, survey, appraise and obtain engineering inspection and environmental reports with the assumption respect to any Property, or all of the Lender Loan (as hereinafter defined) (Properties, and otherwise to do all that, which, in the "Inspection Period"). If opinion of HME, is necessary to determine the condition and value of the Properties for any reason whatsoever the Partnership determines uses intended by the Operating Partnership, provided, however, that the Operating Partnership shall not conduct any environmental study of any Property and said assumption documents are beyond a Phase 1 level without the consent of the Affiliated Partnerships, which consent shall not suitable for its purposes, be unreasonably withheld. The Operating Partnership may declare the Due Diligence Period ended at any earlier time. The Operating Partnership must be satisfied in its all respects (in the sole and absolute discretiondiscretion of the Operating Partnership) with the results of all reviews, inspections and notifies Contributor in writing of such decision prior to investigations conducted by, or under, the Operating Partnership during the Due Diligence Period. If the Operating Partnership shall not be so satisfied, the Operating Partnership may, within three (3) days next following the expiration of the Inspection Due Diligence Period, this Agreement shall automatically terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto in which event the Operating Partnership shall have any rights no obligation or obligations liability under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior or with regard to the expiration Affiliated Partnerships or the Properties, and the Operating Partnership shall be entitled to the immediate return of the Inspection Period shall be deemed a waiver by Partnership of its right to terminate Earnest Money Deposi▇, ▇▇▇ this Agreement pursuant to this Section 4(a)shall, thereafter, be null, void and of no further force or effect. If not so terminated by the Operating Partnership, this Agreement shall continue in full force and effecteffect according to its terms. From the Effective Date through the expiration The Operating Partnership shall be responsible for payment of all of the Inspection Period, Partnership and costs of its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guarantiesdue diligence activities, including, without limitation, the warranties all engineering and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and environmental reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto financial and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipLease audits.
Appears in 1 contract
Sources: Agreement for Contribution of Real Estate and Related Property (Acc Corp)
Inspection Period. (a) The Partnership Buyer shall have until 5:00 p.m.forty (40) days after the Effective Date of this Agreement (hereinafter referred to as the “Inspection Period”) to make all inspections Buyer may deem necessary and to determine if the Property is satisfactory for its needs including, Atlantabut not limited to, Georgia time, on all aspects of the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to inspect operation of the Property and review all documents and records relating to the assumption documents to be used in connection with the assumption operation of the Lender Loan (as hereinafter defined) (Property in the "Inspection Period")Seller’s possession or reasonably obtainable by Seller. If for any reason whatsoever In the Partnership event Buyer determines that the Property and said assumption documents are does not suitable for meet its purposesneeds, or Buyer is not satisfied in its sole and absolute discretiondiscretion with any of the inspection results, and notifies Contributor then Buyer shall so notify Seller in writing of such decision prior to the expiration of the Inspection Period, this Agreement shall automatically terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to the expiration of the Inspection Period and this Agreement may be canceled by Buyer and, if so canceled, shall be deemed a waiver by Partnership of its right null and void and the Initial Deposit shall be immediately refunded to Buyer. During the Inspection Period and thereafter if Buyer does not terminate this Agreement pursuant to this Section 4(a)the foregoing paragraph, and this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and its Buyer and/or Buyer’s agents, engineers, surveyors, appraisers, auditors and other representatives employees and/or contractors shall have the right to enter upon the Property at reasonable times during normal business hours with 24-hour prior notice to inspect, examine, survey, obtain engineering conduct such inspections, appraisetests and studies as Buyer may deem necessary, provided:
(a) Such inspections, tests and otherwise do that which, in studies shall not materially interfere with the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation tenants of the Property or any part thereof). Also, from damage the Effective Date through Property; and
(b) Buyer shall leave the expiration of Property in at least the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way same condition as it was prior to the Property. Contributor shall make such booksentry onto the Property by Buyer or its agents, files and records available for examination by Partnership and Partnership's agents and representativesemployees or contractors or, who shall have in the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account event of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employeeProperty (other than ordinary wear and tear), agent, representative or consultant of Partnership Buyer shall immediately repair and not restore the result of Contributor's, or Property to its property manager's, asset manager's, representatives', or agents, willful misconduct or negligenceprior condition; provided, however, Partnership Buyer shall not be liable responsible for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account the mere discovery of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation pre-existing condition of the Property; (vi) soil, geological . Buyer agrees to indemnify and engineering studies and reports, if any; (vii) maintenance work orders (hold harmless Seller from any loss or requests) and other maintenance reports, if any; (viii) all equipment lease agreementsdamage, including any and all amendments thereto and related correspondence; (ix) all other contractsreasonable attorneys’ fees, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement arising out of the premiums payable with respect thereto; (xv) copies inspections, tests or studies that Buyer, its agents or employees may conduct pursuant to this Paragraph 6 other than any liability arising out of all Certificates the discovery by Buyer and/or its agent or contractor of Occupancy for an environmental problem or condition or the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) obligation of Buyer and/or its contractor to report any document, report environmental condition to a governmental authority unless such environmental problem or item not specifically enumerated herein but which has been condition is the result of the actions of Buyer and/or its agent or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereofcontractor. For purposes This indemnity shall survive any early termination of this Agreement, Agreement and the term "Trigger Date" shall mean the date on which Partnership shall have received both the last Closing of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to Partnershiptransaction contemplated hereunder.
Appears in 1 contract
Sources: Contract of Sale and Purchase (Medalist Diversified REIT, Inc.)
Inspection Period. (a) The Partnership Purchaser shall have until 5:00 p.m.the expiration of sixty (60) days after the Effective Date (hereinafter referred to as the “Inspection Period”) to conduct examinations and inspections of the Property pursuant to this Section 6.1.
(b) During the Inspection Period, AtlantaPurchaser, Georgia timeor Purchaser’s authorized agents and representatives, shall be entitled (and permitted) to enter upon the Property for the purpose of inspecting, examining and making tests upon, in and under the Property and/or otherwise conducting an evaluation of the Property. Such tests, inspections and evaluations shall include, but not necessarily be limited to, the right to conduct invasive tests, soil borings, regulatory evaluations, effecting permit applications and master planning activities. Seller shall undertake all cooperative efforts or actions as Purchaser may reasonably request in connection with, and in order to facilitate, Purchaser’s inspection and evaluation of the Property. Purchaser’s right to inspect, evaluate and conduct tests on the fifteenth (15th) day immediately following the Trigger Date (Property, as hereinafter defineddescribed in this Section 6.1(b), within which to inspect shall continue after the Property and review Inspection Period until the assumption documents to be used Closing (provided that Purchaser has not terminated this Contract).
(c) If Purchaser, in connection Purchaser’s sole discretion, is dissatisfied with the assumption results of Purchaser’s inspection of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property and said assumption documents are not suitable for its purposesProperty, in its sole and absolute discretionPurchaser may, and notifies Contributor in writing of such decision by written notice delivered to Seller prior to the expiration of the Inspection Period, terminate this Agreement Contract. Upon such event, the Title Company shall automatically terminate and immediately return the ▇▇▇▇▇▇▇ Money shall be returned Deposit to Partnership, less One Hundred Dollars Purchaser upon demand ($100.00without the necessity of the consent of Seller), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto neither Seller nor Purchaser shall have any rights or further obligations under hereunder. If Purchaser does not terminate this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor Contract by delivery of such written notice prior to the expiration of the Inspection Period Period, Purchaser shall be conclusively deemed a waiver to have accepted the Property in its present condition.
(d) Purchaser agrees to indemnify and hold Seller harmless from all costs and expenses actually paid by Partnership Seller (supported by verified evidence of its right to terminate this Agreement pursuant to this Section 4(a)same) which arise from damages and claims asserted by third parties (other than Seller, and this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and its agents, engineersaffiliates, surveyorsemployees, appraiserspartners, auditors officers, and/or directors) in connection with Purchaser’s inspection of the Property.
(e) In the event Purchaser fails to consummate the Closing, other than for Seller’s breach of this Contract, Purchaser agrees to reimburse Seller for all reasonable and other representatives shall have the right necessary out-of-pocket expenses, actually paid by Seller (supported by verified evidence of same), relating to enter upon damage to the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, caused by Purchaser in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition connection with its inspection of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make provide copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills reports received with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to Partnership.
Appears in 1 contract
Sources: Specific Performance Real Estate Sales Contract (Jacobs Entertainment Inc)
Inspection Period. (a) The Partnership shall have until 5:00 p.m., Atlanta, Georgia time, on Purchaser acknowledges that Seller provided Purchaser the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which opportunity to inspect conduct such due diligence and inspections of the Property as Purchaser and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property its officers, directors, employees and said assumption documents are not suitable for its purposes, in its sole advisers deemed necessary and absolute discretion, and notifies Contributor in writing of such decision appropriate prior to the expiration of Effective Date. Notwithstanding anything to the contrary herein, any and all references to the “Inspection Period, ” in this Agreement shall automatically terminate mean and the ▇▇▇▇▇▇▇ Money refer and shall be returned deemed to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay mean and refer to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure all purposes to so notify Contributor a period commencing prior to the expiration Effective Date and expiring immediately upon the Effective Date and that, therefore, any and all rights of the Inspection Period shall be deemed a waiver by Partnership of its right Purchaser to terminate this Agreement pursuant to this Section 4(a)in connection with its Due Diligence have terminated and been unconditionally waived and relinquished, and Purchaser has no such right to so terminate this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and connection with its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, Due Diligence (but without limiting Purchaser’s termination rights expressly set forth in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership this Agreement (including, without limitation, inspect, review termination rights set forth in Section 4.6) and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain Deposit shall be non-refundable to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except Purchaser except as otherwise expressly provided in this Agreement). Notwithstanding the foregoing, Partnership does hereby covenant from and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor subject to terms of this Agreement, Purchaser and its representatives shall deliver be permitted to Partnership copies enter upon the Property during the term of this Agreement to examine, inspect and investigate the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (Property including, but not limited to, plansall Books and Records located at the Property, specificationssubject to Manager’s good faith compliance with Legal Requirements with respect to access to any and all Employee records (collectively, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping“Due Diligence”); (xvii) any documentprovided, report or item not specifically enumerated herein but which has been or will however, the Purchaser shall have no right to terminate this Agreement based on such Due Diligence after the expiration of the Inspection Period. Purchaser’s Due Diligence shall be delivered subject to Lender;
(xviii) all documents executed the terms, conditions and limitations set forth in connection this ARTICLE IV, and Purchaser’s conduct shall be in strict compliance with the Lender Loan covenants and all documents to be used in connection with Partnership's assumption thereof. For purposes of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described agreements contained in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipARTICLE IV.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Hotel (Carey Watermark Investors 2 Inc)
Inspection Period. (a) The Partnership Purchaser shall have until 5:00 p.m., Atlanta, Georgia time, p.m. Eastern Standard Time on the fifteenth date that is forty-five (15th45) day immediately following days after the Trigger Effective Date (as hereinafter defined), within which the “Inspection Period”) to inspect the Property and review the assumption documents Due Diligence Documents, and to be used perform such other due diligence, including a phase I environmental investigation, with respect to the Property as Purchaser reasonably deems necessary, subject to the rights of tenants in connection with the assumption possession of the Lender Loan (as hereinafter defined) (the "Inspection Period")Property. If for any reason whatsoever the Partnership determines that the Property Purchaser agrees to immediately commence its inspection efforts and said assumption documents are not suitable for its purposes, in its sole and absolute discretionwill pursue same diligently, and notifies Contributor in writing will advise Seller of such decision prior to the expiration of the Inspection Periodits findings as soon as practicable. Purchaser may, this Agreement shall automatically terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights on or obligations under this Agreement, except as otherwise specifically set forth herein. Partnership's failure to so notify Contributor prior to before the expiration of the Inspection Period shall be deemed a waiver by Partnership (the “Out Date”), in its sole discretion, advise Seller and Escrow Holder, in writing, of its right election to terminate this Agreement pursuant to this Section 4(a), and this Agreement shall continue in full force and effect. From proceed with the Effective Date through the expiration of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results purchase of the Property. Partnership shallIf Purchaser, and it does hereby agree to indemnify and hold Contributorin its sole discretion, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor decides that it will pay all expenses incurred by Partnership to its consultants on account not proceed with the purchase of any of Partnership's investigations the Property, Purchaser shall on or about before the Property Out Date give notice to Seller and will promptly remove any lien Escrow Holder that it is terminating this Agreement. If Purchaser fails to notify Seller and Escrow Holder of its decision on or judgment which may hereinafter encumber before the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Out Date, Contributor Purchaser shall be deemed to have notified Seller and Escrow Holder on the Out Date that Purchaser is terminating this Agreement. Upon any such termination, in the absence of a default by Purchaser beyond applicable notice and cure periods, the Deposit shall be refunded to Purchaser, all documents, including all Due Diligence Documents, received from Seller or Seller’s agents, shall be returned by Purchaser to Seller, Purchaser shall, at Seller’s request, at no cost to Seller, without representation or warranty, deliver to Partnership Seller true and correct copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills third party reports obtained by Purchaser with respect to the Property, together with proof of payment thereofand, for subject to Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12 hereof, neither party shall have any further rights or obligations hereunder. In the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitationevent this Agreement is not so terminated, the warranties Deposit shall become non-refundable (subject to the other terms and guaranties specifically set forth conditions of this Agreement) and Seller and Purchaser shall proceed to Closing in Exhibit F attached hereto; accordance with the terms and conditions hereof and the Inspection Period termination rights shall be deemed waived by Purchaser. Purchaser shall not undertake any soil borings, ground water testing or other “Phase II” investigative procedures without first having obtained the prior written consent of Seller, which shall not be unreasonably withheld, delayed or conditioned. In connection with Purchaser’s inspection of the Property, Purchaser agrees that:
(va) licensesAll inspection fees, approvalsengineering fees, entitlements and permits or other expenses of any kind incurred by Purchaser relating to the development and operation inspection of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or Property will be delivered to Lenderat Purchaser’s sole cost and expense;
(xviiib) Purchaser will give Seller reasonable advance notice of the dates of all documents executed in connection inspections and will schedule all tests and inspections during normal business hours whenever feasible unless otherwise requested by Seller;
(c) Seller will have the right to have one or more representatives of Seller accompany Purchaser and Purchaser’s representatives, agents or designees while they are on the Property;
(d) Any entry by Purchaser, its representatives, agents or designees will not unreasonably interfere with Seller’s use of the Property or with the Lender Loan operations of any tenant;
(e) Purchaser will restore any damage caused to the Property by Purchaser’s entry on the Property for inspection purposes at Purchaser’s sole cost and expense if this transaction does not close; and
(f) In making any inspection hereunder, Purchaser will treat and will cause any representative of Purchaser to treat all documents information obtained by Purchaser pursuant to be used in connection with Partnership's assumption thereof. For purposes the terms of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described Agreement as strictly confidential in this accordance with Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to Partnership11.12 below.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Corporate Realty Income Fund I L P)
Inspection Period. (a) The Partnership shall have until 5:00 p.m., Atlanta, Georgia time, on the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to inspect the Property and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property and said assumption documents are not suitable for its purposesPurchaser, in its sole and absolute discretion, and notifies Contributor in writing of such decision is not satisfied with the Property, then Purchaser may terminate this Agreement by delivering written notice thereof to Seller prior to the expiration of the Inspection Period. In such event, this Agreement shall automatically terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, Purchaser and thereafter no neither party hereto shall will have any rights or further obligations under this Agreement, except as otherwise specifically set forth hereinfor those obligations which expressly survive the termination hereof. Partnership's failure to so notify Contributor prior to the expiration of the Inspection Period shall be deemed a waiver by Partnership of its right to terminate this Agreement pursuant to this Section 4(a), and this Agreement shall continue in full force and effect. From the Effective Date through Upon the expiration of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except except as otherwise provided in this Agreement, Partnership does hereby covenant the ▇▇▇▇▇▇▇ Money shall become non-refundable to Purchaser. From the Effective Date through Closing, Seller shall send Purchaser updated weekly operating and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property leasing reports and will promptly remove any lien or judgment which such other reports and other information as Purchaser may hereinafter encumber the Property or any part thereof on account of such failure to pay such expensereasonably request.
(b) As soon as possible During the Inspection Period, Purchaser may object in writing to any liens, encumbrances, and other matters affecting the Property or shown on any survey. All such matters to which Purchaser timely objects shall be “Non-Permitted Encumbrances”; all such matters for which no such objection notice is given during the time period prescribed therefor, except those that arise or attach, or are recorded or perfected, after expiration of the Effective DateInspection Period, Contributor shall deliver be “Permitted Encumbrances”. Seller may, but shall not be obligated to, at its cost, cure, remove or insure around all Non-Permitted Encumbrances; provided, however, that notwithstanding the foregoing, Seller shall be obligated to Partnership copies remove from record (by bonding or otherwise) any of the following affecting the Property: (w) any easements or rights of way with respect to the Property granted by Seller after the date hereof and any agreements affecting title to the Property, entered into by Seller after the date hereof, in either case, without Purchaser’s prior written approval, which Contributor has approval shall not be unreasonably withheld or delayed; (x) liens or judgments affecting the Property; (y) any mortgage or other security interest entered into by Seller; or (z) any mechanic’s or materialman’s lien and any judgment filed, recorded or docketed against the Property, in any case resulting from the non-payment by Seller of any sums alleged to be due and owing by Seller to a contractor or materialman (collectively, the “Mandatory Removal Liens”). Within three (3) business days after the receipt of a written notice from Purchaser of any Non-Permitted Encumbrances, Seller shall (subject to Seller’s obligations as to Mandatory Removal Liens) notify Purchaser in writing of any such Non-Permitted Encumbrances which Seller is unable or unwilling to cause to be removed prior to or at Closing (the “Cure Notice”). In the event Seller does not provide the Cure Notice to Purchaser within such three (3) business day period, Seller shall be deemed to have agreed to remove such Non-Permitted Encumbrances prior to or at Closing. If Seller does not cause all of the Non-Permitted Encumbrances and Mandatory Removal Liens to be removed, cured or insured around on or prior to the scheduled Closing Date, then Purchaser may, as its sole and exclusive remedy, either terminate this Agreement in accordance with Section 7 by delivering notice to Seller on or before the Closing Date, or purchase the Property without any reduction in the Purchase Price, subject to the Non-Permitted Encumbrances, in which case, all such Non-Permitted Encumbrances shall be Permitted Encumbrances. The rights of tenants, as tenants only, under the Leases are hereby designated as Permitted Encumbrances. If Purchaser does not terminate this Agreement on or before the Closing Date, Purchaser will be deemed to have elected to proceed under Section 4(b) with respect to the Property and to have waived its objections with respect to any Non-Permitted Encumbrances without any reduction in the Purchase Price but otherwise subject to the other conditions to closing thereto. Seller agrees that, between the Effective Date and the Closing Date, Seller will not sell, assign, rent, convey (absolutely or as security), grant a security interest in, or otherwise encumber or dispose of, the Property (or any part thereof or estate therein) in any manner that will survive Closing, except as approved in writing by Purchaser, in its possession sole discretion, or under as expressly provided in this Agreement. Notwithstanding the foregoing, Seller shall have the right to continue leasing apartment units in the Property in the manner described in Section 6(a)(iv) hereof and to terminate, amend or enter into service contracts in the manner described in Section 6(a)(iv) hereof. Notwithstanding the foregoing, Purchaser may, prior to Closing, further notify Seller in writing of any additional objection to any new survey matters shown on any update to the Survey or new title matters shown on any update to the Title Commitment obtained by Purchaser prior to the Closing Date. With respect to any such additional objections to title or survey, Purchaser shall have the same rights as those which apply to any title or survey objections resulting from the initial title examination and survey review made by Purchaser. If Seller does cure or satisfy the objections, then Purchaser shall have the same rights provided with respect to the initial title examination and survey.
(c) Purchaser, at its control sole cost and expense, shall obtain commitments to issue owner’s policies of title insurance in the amount of the Purchase Price for the Property, insuring title in Purchaser subject only to the Permitted Encumbrances and other standard pre-printed exceptions included in a standard form owner’s policy (the “Owner’s Policy(ies)”). PURCHASER HEREBY ACKNOWLEDGES HAVING BEEN ADVISED BY SELLER TO HAVE AN ABSTRACT OF TITLE FOR THE PROPERTY EXAMINED BY AN ATTORNEY OF ITS CHOICE, OR TO OBTAIN A POLICY OF TITLE INSURANCE PURSUANT TO THE TERMS HEREOF.
(d) Prior to Closing, Purchaser may physically inspect the Property; provided, however, Purchaser shall be permitted to make such investigations, including appraisals, engineering studies, soil tests, environmental studies, inquiry of governmental officials and underwriting analyses as Purchaser deems necessary or advisable, subject to the following limitations: Purchaser shall not conduct invasive testing (including, without limitation, any environmental testing other than a Phase I study) without Seller’s prior written consent, which consent may be conditioned upon, among other things, receipt of a copy of a Phase I environmental assessment recommending invasive testing, a detailed description of the proposed physical or invasive inspection or testing, a list of contractors who will be performing the physical or invasive inspection or testing, evidence of insurance satisfactory to Seller, and such other information as Seller in its sole discretion requires in connection with such proposed inspection or testing. Further, Purchaser personally or through its authorized agents or representatives, shall have the right during the Inspection Period, (i) to review the books and records relating to the Property: , and (iii) upon reasonable advance notice to Seller, to enter upon the Improvements during normal business hours. Purchaser shall have the right to interview on-site employees for possible future employment by Purchaser after the Closing Date. Purchaser may enter the Property to conduct its inspection, but shall be responsible for, and shall indemnify and hold harmless Seller and its partners, shareholders, officers, directors, agents, employees, property manager, controlling persons and affiliates from and against, any claims, losses, costs, liability, expenses or damages caused thereby (including damages and claims arising from any acts or omissions of Purchaser’s agents or contractors); provided, however, Purchaser shall have no liability to Seller under this Section 4(d) for (1) pre-existing conditions upon the Property, (2) loss or damage caused by the acts of the Seller or its agents or representatives, or (3) any claims of diminution in the value of the Improvements as a consequence of the results revealed by such tests and inspections (so long as Seller has given Purchaser its permission to reveal such test and inspections). The foregoing indemnification obligation shall survive the Closing or termination of this Agreement for a period of six (6) months. If Purchaser terminates this Agreement, Purchaser shall deliver to Seller all monthly copies of the Information provided by Seller hereunder and quarterly income and expense statements copies, at Seller’s cost, of any other third party materials received or prepared by or for Purchaser in connection with the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills provided, that in no event shall Purchaser be required to provide any documents, materials or information which are subject to attorney/client, work product or similar privilege, which constitute attorney communications with respect to Purchaser, or which are subject to a confidentiality agreement. The terms and provisions of this Section 4(d) shall survive any Closing or the earlier termination of this Agreement.
(e) Purchaser acknowledges that Purchaser will have the opportunity to independently and personally inspect the Property and that Purchaser has entered into this Agreement based upon its ability to make such examination and inspection. Except as otherwise set forth in this Agreement and in the closing documents delivered at Closing, the Property is to be sold to and accepted by Purchaser at Closing in its then present condition, “AS IS, WITH ALL FAULTS, AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED”. Except as set forth in this Agreement and in the closing documents delivered at Closing, it is understood and agreed that, Seller and Seller’s agents or employees have not made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, oral or written, past, present or future, with respect to any portion of the Property, together with proof including, but not limited to, warranties, representations or guaranties as to matters of payment thereof, for title (other than Seller’s express warranty of title set forth in the past three limited warranty deed to be delivered at Closing); environmental matters of any kind relating to the Property or any portion thereof (3) tax yearsincluding the condition of the soil or groundwater beneath the Property); (iv) all available warranties and guarantiesgeological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the warranties withdrawal of water and guaranties specifically set forth in Exhibit F attached heretoearthquake faults and the resulting damage of past and/or future earthquakes; (v) licenseswhether, approvals, entitlements and permits relating to the development extent to which the Property or any portion thereof is affected by any stream (surface or underground), body of water, flood prone area, flood plain, floodway or special flood hazard; drainage; soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any under shoring; zoning to which the Property or any portion thereof may be subject; the availability of any utilities to the Property or any portion thereof including, without limitation, water, sewage, gas and operation electric; usages of adjoining property; access to the Property or any portion thereof, the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Property or any part thereof; the presence of Hazardous Materials (defined below) in or on, under or in the vicinity of the Property; the condition or use of the Property or compliance of the Property with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws; the existence or non-existence of underground storage tanks; any other matter affecting the stability or integrity of the Property; the potential for further development of the Property; the existence of vested land use, zoning or building entitlements affecting the Property; the merchantability of the Property or fitness of the Property for any particular purpose (viPurchaser affirming that Purchaser has not relied on Seller’s or Seller’s agents’ or employees’ skill or judgment to select or furnish the Property for any particular purpose, and that Seller makes no warranty that the Property is fit for any particular-purpose); or tax consequences. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE CLOSING DOCUMENTS DELIVERED AT CLOSING, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO PURCHASER, INCLUDING, WITHOUT LIMITATION, AS TO THE PHYSICAL CONDITION OF THE PROPERTY AND ANY IMPROVEMENTS LOCATED THEREON, OR THEIR SUITABILITY FOR ANY PARTICULAR PURPOSE OR OF MERCHANTABILITY. PURCHASER SHALL RELY SOLELY ON ITS OWN INVESTIGATIONS OF THE PROPERTY IN DETERMINING WHETHER TO ACQUIRE IT. THE PROVISIONS OF THIS SECTION 4(e) soilARE A MATERIAL PART OF THE CONSIDERATION FOR SELLER’S ENTERING INTO THIS AGREEMENT, geological and engineering studies and reportsAND SHALL SURVIVE CLOSING.
(f) Except as expressly set forth in this Agreement, if any; (vii) maintenance work orders (or requestsincluding without limitation, Sections 4(g) and other maintenance reports7, if any; (viii) and in the closing documents delivered at Closing, Purchaser hereby FOREVER RELEASES AND DISCHARGES Seller from all equipment lease agreementsresponsibility and liability, including any without limitation, liabilities and all amendments thereto and related correspondence; (ix) all other contractsresponsibilities for the lessor’s obligations under the Leases, and any amendments thereto; (x) any notices relating to the physical, environmental or legal compliance status of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; whether arising before or after the Effective Date, and liabilities under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (xii) 42 U.S.C. Sections 9601 et seq.), as amended (“CERCLA”), regarding the management contract for condition, valuation, salability or utility of the Property, and or its suitability for any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications purpose whatsoever (including, but not limited to, planswith respect to the presence in the soil, specificationsair, drawings structures, Improvements and designs for architecturalsurface and subsurface waters, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report of Hazardous Materials or item not specifically enumerated herein but which has other materials or substances that have been or will may in the future be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents determined to be used toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Property). Except as expressly set forth in connection with Partnership's assumption thereof. For purposes of this Agreement, including without limitation, Sections 4(g) and 7, and in the term "Trigger Date" shall mean closing documents delivered at Closing, Purchaser further hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the date on which Partnership shall have received both Property is or may be subject, including, but not limited to, CERCLA) concerning the last physical characteristics and any existing conditions of the items described in this Section 4(b) and a written notice from Contributor stating that Property, including, without limitation, the item(s) accompanying said written notice are lessor’s obligations under the last Leases relating to the physical, environmental or legal compliance status of the items described Property, whether arising before or after the Effective Date. Purchaser further hereby assumes the risk of changes in this Section 4(b) applicable laws and regulations relating to past, present and future environmental conditions on the Property and the risk that all adverse physical characteristics and conditions, including, without limitation, the presence of the other items described in this Section 4(b) have been delivered to Partnership.Hazardous Materials or other
Appears in 1 contract
Sources: Purchase & Sale Agreement (Inland Residential Properties Trust, Inc.)
Inspection Period. (a) The Partnership shall have until 5:00 p.m.A. Notwithstanding anything in this Agreement to the contrary, Atlantaif, Georgia time, on the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to inspect the Property and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that the Property and said assumption documents are not suitable for its purposes, in its Purchaser’s sole and absolute discretion, and notifies Contributor in writing Purchaser is not satisfied with the condition of such decision prior the Property, including but not limited to the expiration environmental condition of the Land, and the financial feasibility of Purchaser’s proposed plans for the rezoning and development of same, then Purchaser shall have the right to terminate this Agreement by written notice given to Seller on or before 5:00 p.m. Central Standard Time on July 15, 2005 (the period of time from the date of this Agreement through and including the last date by which Purchaser may terminate this Agreement and obtain a refund of all of the ▇▇▇▇▇▇▇ Money is herein referred to as the “Inspection Period, ”). In the event that Purchaser terminates this Agreement shall automatically terminate and pursuant to a written notice given in a timely manner to Seller as set forth herein, then the ▇▇▇▇▇▇▇ Money shall be returned refunded to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this AgreementPurchaser by the Escrowee in accordance with Paragraph 2.B hereof, and thereafter no party hereto the Agreement shall have any rights or obligations under this Agreementbe null and void, without further obligation of either party, except as otherwise specifically set forth expressly provided herein.
B. Purchaser, and its agents, representatives, employees, and contractors may, in Purchaser’s sole discretion and at Purchaser’s sole expense, during the Inspection Period, make any and all inspections, tests and investigations, including environmental, soil and engineering tests, and enter and inspect the Property. Partnership's failure Purchaser understands and agrees that any on-site inspections or testing of the Property shall be conducted upon at least twenty-four (24) hours’ prior notice to so notify Contributor prior Seller. Purchaser agrees to repair any damage to the expiration Property arising out of or resulting from the inspection of the Property by Purchaser or its consultants or agents. Purchaser shall ensure that Purchaser’s consultants maintain public liability and property damage insurance in the amount of $2,000,000 and in form and substance adequate to insure against all liability of Purchaser and its consultants, respectively, and each of its agents, employees or contractors, arising out of the inspections or testing. All inspections and testing shall occur at reasonable times agreed upon by Seller and Purchaser and shall be conducted so as not to interfere unreasonably with use of the Property by Seller. Purchaser agrees to provide Seller with copies of all studies and reports which it obtains during the Inspection Period shall be deemed a waiver within five (5) business days after Purchaser’s receipt of same. Purchaser hereby agrees to indemnify, defend and hold Seller harmless from and against all damages or liability, including injuries to or death of persons or damage to the Property, caused by Partnership of the Purchaser and/or its right to terminate this Agreement agents, representatives, employees and contractors in performing said inspections and investigations at the Property during the Inspection Period and thereafter pursuant to Purchaser’s Right of Entry under subparagraph C below. Notwithstanding anything to the contrary contained herein, the covenants of Purchaser contained in this Section 4(a)Paragraph 7.B shall survive the closing or earlier termination of this Agreement.
C. Notwithstanding anything to the contrary contained herein, and this Agreement shall continue in full force and effect. From the Effective Date through after the expiration of the Inspection Period, Partnership and provided that this Agreement has not been terminated, Purchaser, its agents, engineersrepresentatives, surveyors, appraisers, auditors employees and other representatives contractors shall continue to have the right (upon reasonable prior verbal or written notice to Seller) to enter upon the Property at reasonable times and while thereon, continue to inspectmake surveys, examinetake measurements, surveyperform test borings (after taking proper precautions) including contacting the Joint Utility Locating and Information for Excavators (▇▇▇▇▇) for the location of any underground facilities, obtain engineering inspections, appraiseor other tests of surface and subsurface conditions, and otherwise do make engineering, environmental and other studies and inspect the Land. Notwithstanding anything contained herein, nothing herein shall be deemed to expand or construed to expand any rights given by Seller to Purchaser hereunder, but the parties agree that which, in Purchaser’s continued right of entry onto the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof). Also, from the Effective Date through Land after the expiration of the Inspection PeriodPeriod is granted as a courtesy.
D. In the event that Purchaser, Partnership shall have upon Purchaser’s sole discretion, waives all the right to examine all of Contributor's books, files and records relating contingencies contained in any way this Agreement prior to the Property. Contributor Closing Date, Purchaser shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies give written notice of such books, files and records and to extract therefrom such information as Partnership may desirewaiver, and who Seller shall have be obligated to close this transaction on an accelerated date designated by Purchaser, but not less than thirty (30) days from the right to audit date of receipt by Seller of said written notice from Purchaser.
E. Purchaser acknowledges and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees agrees that: (including reasonable attorneys' fees and expenses incurred on account of any of the foregoing1) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property shall be transferred and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure conveyed to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has Purchaser at Closing in its possession or under its control relating to the Property: (i) “AS IS/WHERE IS” condition only, with all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Propertyfaults, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping)any conditions described in the Existing Data; (xvii2) any documentupon the Closing Purchaser shall assume the risk that adverse matters, report including, but not limited to, adverse physical or item environmental conditions, may not specifically enumerated herein but which have been revealed by Purchaser’s inspections and investigations; (3) Purchaser has been responsible for its own investigation and “due diligence” as to the Property, for its own analysis of the merits and risks of Purchaser’s investment in the Property; (4) Purchaser fully understands the transaction contemplated by this Agreement and has such knowledge and experience in financial, business and real estate matters that it is capable of evaluating the merits and risks of the investment in the property, and Purchaser has fully reviewed the disclaimers and waivers set forth in this Agreement with its counsel and understands the significance and effect thereof; (5) Purchaser hereby releases Seller from all responsibility and liability to Purchaser as to the condition, valuation, or will be delivered to Lender;
utility of the Property, or its suitability for any purpose whatsoever; (xviii6) all documents executed in connection with the Lender Loan Purchaser hereby waives any and all documents objections to be used or complaints directed to or against Seller with respect to the condition, valuation or utility of the Property, and (7) except as expressly set forth in connection with Partnership's assumption thereof. For purposes Section 8 of this Agreement, it is understood and agreed that Seller is not making and has not at any time made any warranties or representations of any kind or character, expressed or implied, with respect to the term "Trigger Date" shall mean Property, including, but not limited to, any warranties or representations as to habitability, merchantability, fitness for a particular purpose, title (other than Seller’s limited warranty of title to be set forth in the date on which Partnership shall have received both deed), zoning, tax consequences, latent or patent physical or environmental condition, utilities, operating history or projections, valuation, governmental approvals, the last compliance of the items described in Property with governmental laws, the truth, accuracy or completeness of the Existing Data or any other information provided by or on behalf of Seller to Purchaser, or any other matter or thing regarding the Property. Purchaser and Seller agree that the provisions of this Section 4(b7(E) and a written notice from Contributor stating that shall survive the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipClosing.
Appears in 1 contract
Sources: Real Estate Purchase Agreement (Bio Logic Systems Corp)
Inspection Period. (a) The Partnership Subject to the rights of existing tenants at the Property, Buyer shall have until 5:00 p.m., Atlanta, Georgia time, a period commencing on the fifteenth Effective Date hereof and ending on May 12, 2006 at 3 p.m. Eastern Standard Time (15ththe "Due Diligence Period") day immediately following the Trigger Date (as hereinafter defined), within which to cause one or more surveyors, attorneys, engineers, auditors, architects, and/or other experts of its choice to undertake the following with respect to each Property: (i) to inspect any document related to each Property, including, without limitation, all Leases and related documents, working drawings, plans and specifications, surveys, appraisals, engineer's reports, environmental reports, insurance policies, service contracts, real estate tax receipts and annual and monthly operating statements, and (ii) to inspect, examine, survey, appraise and obtain engineering and inspection reports with respect to each Property, and otherwise to do all that, which, in the opinion of Buyer is necessary to determine the condition and value of each Property for the uses intended by Buyer; provided, however, that Buyer has received environmental reports from Home Properties and review Buyer shall not conduct any additional environmental study of any Property without the assumption documents to be used in connection with the assumption prior written consent of the Lender Loan (as hereinafter defined) (the "Inspection Period")Home Properties. If Buyer may terminate this Agreement for any reason whatsoever the Partnership determines that the Property and said assumption documents are not suitable for its purposes, in its sole and absolute discretion, and notifies Contributor in writing of such decision or no reason by written notice to Sellers given prior to the expiration of the Inspection Due Diligence Period, in which event the ▇▇▇▇▇▇▇ Money Deposit shall be returned immediately to Buyer, and this Agreement shall, thereafter, be deemed null, void and of no further force or effect, and neither party shall have any further rights or obligations under this Agreement, except for those provisions that expressly survive the termination of this Agreement. If not so terminated by Buyer then this Agreement shall automatically terminate continue in full force and effect according to its terms and the ▇▇▇▇▇▇▇ Money Deposit shall be returned to Partnership, less One Hundred Dollars ($100.00), which Escrow Agent shall pay to Contributor as due consideration for this Agreement, and thereafter no party hereto shall have any rights or obligations under this Agreement, nonrefundable except as otherwise specifically expressly set forth herein. Partnership's failure to so notify Contributor prior to the expiration Buyer shall be responsible for payment of all of the Inspection Period shall be deemed a waiver by Partnership costs of its right to terminate this Agreement pursuant to this Section 4(a)due diligence activities, and this Agreement shall continue in full force and effect. From the Effective Date through the expiration of the Inspection Period, Partnership and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property at reasonable times to inspect, examine, survey, obtain engineering inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended by Partnership (including, without limitation, inspectall engineering and environmental reports and surveys, review and copy any and all documents in the possession or control of Contributor, its agents, contractors or employees, financial and which pertain to the construction, ownership, use, occupancy or operation of the Property or any part thereof)Lease audits. Also, from the Effective Date through the expiration of the Inspection Period, Partnership Buyer shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager Home Properties and Contributor's asset manager, the relevant Company harmless from and against any and all loss, claims, demands, liabilities, judgments, causes damage and expense arising out of actions, costs, expenses entry by Buyer and fees (including reasonable attorneys' fees its agents onto any Property and expenses incurred on account any testing performed thereon. Buyer shall repair any damage which it may cause as a result of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employeesuch entry and testing. Buyer shall cause its entry, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership inspections and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
testing (b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lender;
(xviii) all documents executed in connection with the Lender Loan and all documents to be used conducted in connection with Partnership's assumption thereof. For purposes of this Agreement, a manner so as to minimize disruption to staff and tenants at the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described in this Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to PartnershipProperties.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Inspection Period. (a) The Partnership Purchaser shall have until 5:00 p.m.p.m. Central Standard Time on June 23, Atlanta2000, Georgia time, on the fifteenth (15th) day immediately following the Trigger Date (as hereinafter defined), within which to inspect the Property and review the assumption documents to be used in connection with the assumption of the Lender Loan (as hereinafter defined) (the "Inspection Period"). If for any reason whatsoever the Partnership determines that ) to inspect the Property and said assumption documents are not suitable for the Due Diligence Documents, and to perform such other due diligence with respect to the Property as Purchaser reasonably deems necessary, subject to the rights of tenants in possession of the Property. Purchaser agrees to immediately commence its purposesinspection efforts and will pursue same diligently, and will advise Purchaser of its findings as soon as practicable. Purchaser may, on or before the final day of the Inspection Period (the "Out Date"), in its sole and absolute discretion, advise Seller and notifies Contributor Escrow Holder, in writing writing, of such decision prior its election to proceed with the expiration purchase of the Inspection PeriodProperty. If Purchaser, in its sole discretion, decides that it will not proceed with the purchase of the Property, Purchaser shall on or before the Out Date give notice to Seller and Escrow Holder that it is terminating this Agreement Agreement. If Purchaser fails to notify Seller and Escrow Holder of its decision on or before the Out Date, Purchaser shall automatically terminate be deemed to have notified Seller and Escrow Holder on the ▇▇▇▇▇▇▇ Money Out Date that Purchaser is terminating this Agreement. Upon any such termination, all documents, including all Due Diligence Documents, received from Seller or Seller's agents, shall be returned by Purchaser to PartnershipSeller, less One Hundred Dollars and, subject to Sections 3.5(a) and ($100.00e), which Escrow Agent shall pay to Contributor as due consideration for this Agreement3.6(b), 9.1, 11.2 and thereafter no 11.12 hereof, neither party hereto shall have any further rights or obligations under hereunder. In the event this Agreement is not so terminated, the Deposit shall be delivered as hereinabove provided and shall become non-refundable (subject to the other terms and conditions of this Agreement, except as otherwise specifically set forth herein. Partnership's failure ) and Seller and Purchaser shall proceed to so notify Contributor prior to Closing in accordance with the expiration of terms and conditions hereof and the Inspection Period termination rights shall be deemed a waiver waived by Partnership Purchaser. Purchaser shall not undertake any soil borings, ground water testing or other "Phase 2" investigative procedures without first having obtained the prior written consent of its right to terminate this Agreement pursuant to this Section 4(a)Seller, and this Agreement which consent shall continue in full force and effectnot be unreasonably withheld or delayed. From the Effective Date through the expiration In connection with Purchaser's inspection of the Inspection PeriodProperty, Partnership Purchaser agrees that:
(a) All inspection fees, engineering fees, or other expenses of any kind incurred by Purchaser relating to the inspection of the Property will be at Purchaser's sole cost and its agents, engineers, surveyors, appraisers, auditors expense;
(b) Purchaser will give Seller reasonable advance notice of the dates of all inspections and other representatives shall will schedule all tests and inspections during normal business hours whenever feasible unless otherwise requested by Seller;
(c) Seller will have the right to enter upon have one or more representatives of Seller accompany Purchaser and Purchaser's representatives, agents or designees while they are on the Property at reasonable times to inspect, examine, survey, obtain engineering (provided that the exercise of such right shall not unreasonably delay Purchaser's inspections, appraise, and otherwise do that which, in the opinion of Partnership, is reasonably necessary to determine the boundaries, acreage and condition of the Property and to determine the suitability of the Property for the uses intended );
(d) Any entry by Partnership (including, without limitation, inspect, review and copy any and all documents in the possession or control of ContributorPurchaser, its agentsrepresentatives, contractors agents or employees, and which pertain to the construction, ownership, use, occupancy or operation designees will not unreasonably interfere with Seller's use of the Property or any part thereof). Also, from with the Effective Date through the expiration of the Inspection Period, Partnership shall have the right to examine all of Contributor's books, files and records relating in any way to the Property. Contributor shall make such books, files and records available for examination by Partnership and Partnership's agents and representatives, who shall have the right to make copies of such books, files and records and to extract therefrom such information as Partnership may desire, and who shall have the right to audit and have certified, thoroughly and completely, all income and expenses, profits and losses, and operational results of the Property. Partnership shall, and it does hereby agree to indemnify and hold Contributor, Contributor's property manager and Contributor's asset manager, harmless from and against any and all claims, demands, liabilities, judgments, causes of actions, costs, expenses and fees (including reasonable attorneys' fees and expenses incurred on account operations of any of the foregoing) arising or in any way relating to any damage or injury to any of the improvements or any person on or about the Premises while the Partnership or any employee, agent representatives, or consultant is present thereon to the extent caused by Partnership or any employee, agent, representative or consultant of Partnership and not the result of Contributor's, or its property manager's, asset manager's, representatives', or agents, willful misconduct or negligence; provided, however, Partnership shall not be liable for any consequential or incidental damages. Except as otherwise provided in this Agreement, Partnership does hereby covenant and warrant unto Contributor that it will pay all expenses incurred by Partnership to its consultants on account of any of Partnership's investigations on or about the Property and will promptly remove any lien or judgment which may hereinafter encumber the Property or any part thereof on account of such failure to pay such expense.
(b) As soon as possible after the Effective Date, Contributor shall deliver to Partnership copies of the following which Contributor has in its possession or under its control relating to the Property: (i) all monthly and quarterly income and expense statements for the Property; (ii) all audited annual financial statements for the Property; (iii) the real and personal property tax assessments and tax bills with respect to the Property, together with proof of payment thereof, for the past three (3) tax years; (iv) all available warranties and guaranties, including, without limitation, the warranties and guaranties specifically set forth in Exhibit F attached hereto; (v) licenses, approvals, entitlements and permits relating to the development and operation of the Property; (vi) soil, geological and engineering studies and reports, if any; (vii) maintenance work orders (or requests) and other maintenance reports, if any; (viii) all equipment lease agreements, including any and all amendments thereto and related correspondence; (ix) all other contracts, and any amendments thereto; (x) any notices of violations of law received by Contributor; (xi) the standard form lease for the Property, if any; (xii) the management contract for the Property, and any amendments thereto; (xiii) all environmental studies and reports; (xiv) certificates of insurance currently in effect, together with a statement of the premiums payable with respect thereto; (xv) copies of all Certificates of Occupancy for the Property; (xvi) all construction documents including site plans, zoning approvals, building permits, plans and specifications (including, but not limited to, plans, specifications, drawings and designs for architectural, civil, structural, mechanical, electrical, plumbing and landscaping); (xvii) any document, report or item not specifically enumerated herein but which has been or will be delivered to Lendertenant;
(xviiie) Purchaser will restore any damage caused to the Property by Purchaser's entry on the Property for inspection purposes at Purchaser's sole cost and expense if this transaction does not close; and
(f) In making any inspection hereunder, Purchaser will treat and will cause any representative of Purchaser to treat all documents executed in connection with information obtained by Purchaser pursuant to the Lender Loan and all documents to be used in connection with Partnership's assumption thereof. For purposes terms of this Agreement, the term "Trigger Date" shall mean the date on which Partnership shall have received both the last of the items described Agreement as confidential in this accordance with Section 4(b) and a written notice from Contributor stating that the item(s) accompanying said written notice are the last of the items described in this Section 4(b) and that all of the other items described in this Section 4(b) have been delivered to Partnership11.12 below.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Corporate Realty Income Fund I L P)