Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreement, Buyer shall have the right, at Buyer’s expense, to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to Closing, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicable.
Appears in 4 contracts
Samples: Purchase and Sale Agreement (Excel Trust, Inc.), Purchase and Sale Agreement (Excel Trust, Inc.), Purchase and Sale Agreement (Excel Trust, Inc.)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to 4.1(e), during the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this AgreementInvestigation Period, Buyer shall have the right, at Buyer’s expense, to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingDuring the Investigation Period, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property includingProperty. Without limiting the foregoing, without limitationBuyer may, the right to conduct in Buyer’s sole discretion, cause a phase I environmental audit and an investigation with respect to be prepared by Building Analytics, which shall be prepared at Buyer’s expense according to the Real Property’s compliance with standards of Buyer (the requirements of Title III of “Phase I”). Buyer may contact Xxx Xxxxxxx, Assistant Project Manager, Xxxx Xxxxxxxx Properties, 00000 Xx Xxxxxx Xxxx, Xxxxx #000, Xxx Xxxxx, Xxxxxxxxxx 00000, Telephone: (000) 000-0000, Extension 237, to schedule all such on-site inspections, and Seller shall have the Americans with Disabilities Act of 1990right to be present during such inspections and tests. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”)assigns, from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c4.1(e) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicable.
Appears in 3 contracts
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Pacific Office Properties Trust, Inc.), Purchase and Contribution Agreement and Joint Escrow Instructions (Pacific Office Properties Trust, Inc.), Purchase and Sale Agreement and Joint Escrow Instructions (Pacific Office Properties Trust, Inc.)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreement, Buyer shall shall, after reasonable advance notice to Seller, have the right, at Buyer’s expense, to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditionsconditions (subject to the limitations above), the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior Seller shall have the right to accompany Buyer upon all such entries upon the Real Property. Subject to the foregoing restrictions and the restrictions set forth below, prior to Closing, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hourshours upon reasonable prior notice to Seller, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially unreasonably interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicable.this
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Excel Trust, Inc.), Purchase and Sale Agreement (Excel Trust, Inc.)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to 4.1(d), during the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this AgreementInvestigation Period, Buyer shall have the right, at Buyer’s expense's expense and with the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed and may be provided via electronic mail, to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingDuring the Investigation Period, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hourshours and upon reasonable prior notice, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Real Property to substantially its original physical condition immediately prior to such inspections or tests. Buyer shall not permit provide Seller evidence of its commercial general liability insurance policy covering it and/or any liens or encumbrances of its agents prior to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto accessing the Real Property, or the accidental or inadvertent release and provide a minimum of any Hazardous Materials that were in, on or under twenty-four (24) hours’ notice to Seller to request access of the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicableProperty.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ascend Wellness Holdings, LLC), Purchase and Sale Agreement (Ascend Wellness Holdings, LLC)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) Leases, any restrictions under any restrictions of record and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreementapplicable laws, Buyer and its agents shall have the right, at Buyer’s expense, from time to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating time prior to the Real Property. Prior to ClosingClosing during normal business hours, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real PropertyProperty to examine the same and the condition thereof, at reasonable times during ordinary business hours, and to conduct such surveys and to make inspections such engineering and other inspections, tests and studies as Buyer deems shall determine to be reasonably necessary necessary, all at Buyer’s sole cost and which may be accomplished without causing any material damage to the Real Property expense, including, without limitation, the right to conduct a phase Phase I environmental audit report and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990a roof survey and report. Notwithstanding the foregoing, in no event Buyer shall Buyernot conduct or allow any physically intrusive testing of, its agents, contractors on or subcontractors conduct any invasive testing on under the Real Property without Seller’s prior written approvalconsent, which approval consent shall not be unreasonably withheld, conditioned withheld or delayed. Buyer shall agrees to give Seller reasonable advance notice of such examinations or surveys and to conduct such examinations or surveys during normal business hours to the extent practicable. Buyer agrees to conduct all examinations and surveys of the Property in accordance with all applicable laws and in a manner that will not materially interfere with the operations of Seller or Tenants thereon and will not harm or damage the Property or cause any claim adverse to Seller or any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and agrees to restore the Property to substantially its original condition prior to any such inspections examinations or testssurveys immediately after conducting the same. Buyer shall not permit contact any liens Tenants or encumbrances governmental or quasi governmental authorities concerning the Property without Seller’s prior written consent, which consent shall not be unreasonably withheld or delayed, and Seller shall have the right to be placed against present during any such contacts. Seller acknowledges that Buyer intends to conduct Tenant interviews throughout the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to indemnifies and shall indemnify, defend and hold harmless holds Seller and any agent, advisor, representative, affiliate, employee, director, partner, member, beneficiary, investor, servant, shareholder, subsidiary, trustee or other person or entity acting on Seller’s membersbehalf or otherwise related to or affiliated with Seller (collectively, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group IndemniteeRelated Parties”), ) harmless from and against any and all claims for injury or death to persons, damage to property or other losses, damages (actual, but not consequential) or claims, demandsincluding, without limitation, claims of any tenant(s) then in possession, and causes of action for personal injury or property damageincluding, without limitation,, in each instance, attorneys’ fees and all damages, judgments, liabilities, litigation costs, fees actually suffered or incurred by any or all of the Seller Related Parties and expenses (including reasonable attorneys’ fees) resulting therefrom, directly arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release any action of any Hazardous Materials that were in, person or firm entering the Property on or under the Real Property prior to such entry; Buyer’s behalf as aforesaid or (ii) any breach by Buyer of its obligations under this Section, which indemnity shall survive the negligent Closing and any termination of this Agreement. Prior to, and as a condition to any entry on the Property by Buyer or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer its agents for the purposes set forth in this Section 4.1(c6.3, Buyer shall deliver to Seller a certificate of insurance evidencing comprehensive general liability (including coverage for contractual indemnities) shall survive with a combined single limit of at least $2,000,000.00, in a form reasonably acceptable to Seller, covering any accident or damage arising in connection with Buyer or agents of Buyer on the termination Property, and naming Seller as an additional insured. Buyer will provide a copy of this Agreement and the Closingany written inspection, as applicabletest, report or summary to Seller upon Seller’s written request therefor.
Appears in 2 contracts
Samples: Agreement for Purchase and Sale (Duke Realty Corp), Agreement for Purchase and Sale (Duke Realty Limited Partnership/)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreement, Buyer shall have the right, at Buyer’s expense, to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to Closing, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a one or more phase I environmental audit audits and an investigation one or more investigations with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall promptly return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Notwithstanding anything to the contrary as contained in this Agreement: (i) no inspections or entry upon the Real Property by Buyer shall be conducted without the applicable Seller’s approval as to the time and manner thereof, which approval shall not be unreasonably withheld, conditioned or delayed; (ii) at such Seller’s request, any such inspections and entry by Buyer shall be performed in the presence of a representative of such Seller; (iii) any such inspections and entry by Buyer shall be subject to any limitations under the Leases and shall be performed in a manner which does not unreasonably interfere with the use, operation, or enjoyment of the Property; (iv) Buyer shall not conduct any invasive or destructive testing, and shall not contact, interview or have discussions with the on-site employees or representatives of Tenants and Temporary Occupants, governmental agencies and officials, and/or any other parties, without in each instance obtaining prior written approval from the respective Seller and without such Seller having an opportunity to be present, provided, however, that Buyer shall have the right to contact, interview and have discussions with the corporate contacts of Tenants and Temporary Occupants without the applicable Seller’s prior approval or an opportunity to be present, so long as Buyer notifies such Seller in advance; and (v) Buyer shall cause copies of all third party reports obtained by Buyer in connection with the conduct of Buyer’s inspections, including any tests, surveys, reports and environmental studies conducted of the Property (collectively, the “Reports”), to be delivered, without representation or warranty of any kind, express or implied, to each respective Seller upon issuance thereof without cost to Sellers. In connection with any entry upon the Real Property by Buyer (except for any invasive or destructive testing) and any contact, interviews or discussions by Buyer with Tenants or Temporary Occupants, if Buyer has provided Seller with at least forty-eight (48) hours prior notice of any such entry or contacts with Tenants or Temporary Occupants, and if Seller has not otherwise elected to be present for such entry and/or contact with Tenants or Temporary Occupants, then in each such instance Buyer shall be permitted to proceed with such entry and/or contact with Tenants or Temporary Occupants without Seller present, subject to the other terms and provisions contained herein. Buyer hereby agrees to and shall indemnify, defend and hold harmless each Seller and each Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, representatives, affiliates, contractors and/or subcontractorssubcontractors (collectively, “Buyer’s Affiliates”), pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless any Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent negligence or willful misconduct of any Seller or any Seller Group Indemnitee. Buyer shall carry commercial general liability insurance covering all activities conducted by Buyer and Buyer’s Affiliates on the Property. Such insurance shall have limits of not less than One Million Dollars ($1,000,000.00) for personal injury to or death of any one person, Two Million Dollars ($2,000,000.00) for personal injury to or death of any number of persons in any one accident and One Million Dollars ($1,000,000.00) for property damage, and shall name each respective Seller as an additional insured. Prior to any entry onto the Property by Buyer or its agents or representatives, and as a condition to Buyer’s right to enter onto the Property, Buyer shall provide proof of such insurance to Sellers. Buyer agrees that it shall treat all Seller’s Deliveries and the Reports as confidential materials and shall not disclose any portion thereof except: (i) to the extent necessary in connection with its evaluation of the Property; (ii) to the extent required by law; (iii) to Buyer’s employees, agents, attorneys, consultants, brokers, affiliates, mortgage lender(s) or investors, if any, involved in the transaction contemplated by this Agreement; or (iv) with the express written consent of Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. If this Agreement terminates in accordance with the terms hereof, Buyer shall promptly return to Seller or destroy all Seller’s Deliveries it received and shall not retain any copies of Seller’s Deliveries. Notwithstanding any provision in this Agreement to the contrary, neither Buyer nor Buyer’s Affiliates shall contact any governmental authority regarding Buyer’s discovery of any Hazardous Materials on, or any environmental conditions at, the Property without each respective Seller’s prior written consent thereto. In addition, if such Seller’s consent is obtained by Buyer, such Seller shall be entitled to receive at least five (5) business days prior written notice of the intended contact and to have a representative present when Buyer has any such contact with any governmental official or representative. Buyer agrees that any Seller may seek injunctive relief to prevent or limit an unauthorized disclosure of Seller’s Deliveries and the Reports and also may pursue any other remedies available under law or equity as a result of a breach of this Section. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicable.
Appears in 1 contract
Physical Inspection. Subject Seller shall make a good faith effort to give Buyer, or Buyer’s authorized representatives, at all reasonable times before the Closing Date and upon adequate notice to Seller, physical access to the limitations set forth in this Section 4.1(c) Properties for the purpose of inspecting same. Buyer recognizes that some or all of the Properties may be operated by parties other than Seller and notwithstanding any provision that Seller’s ability to obtain access to such properties, and the manner and extent of such access, is subject to the contrary consent of such third parties. Buyer’s inspection of the Properties shall be limited to conducting a Phase I Environmental Site in this Agreementaccordance with the American Society for Testing and Materials (A.S.T.M.) Standard Practice Environmental Site Assessments: Phase I Environmental Site Assessment Process (Publication Designation: E1527-05); provided, commencing on however, that in the Effective Date and continuing through event the Closing or any earlier termination of this AgreementPhase I Environmental Site Assessment discloses matters (“Environmental Matters”) that Buyer reasonably determines require additional inspection, Buyer may notify Seller in writing of such Environmental Matters and request Seller’s consent to conduct additional inspection activities (“Inspection Request”). The Inspection Request shall have include the rightspecific Property that would be subject to such additional inspection, at Buyer’s expense, to make inspections (including tests, surveys detailed reasons for requesting additional inspection and other studies) a description of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location proposed additional inspection activities to be conduct by Buyer. Seller shall consent to or deny the Inspection Request within five (5) days of property lines, utility availability and use restrictions, environmental conditions, the manner or quality receipt of the construction Inspection Request, provided that consent from Seller shall not to be unreasonably withheld and that the failure of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must Seller to respond within such five (5) day period shall be paid deemed to further develop, improve and/or occupy the Real Property and all other matters relating constitute Seller’s consent to the Real Property. Prior to Closing, Buyer and its agents, contractors and subcontractors shall have proposed additional inspection activities proposed in the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990Inspection Request. Notwithstanding the foregoing, in no event if Seller withholds its consent to any Inspection Request, then such Property shall Buyerbe excluded from the transactions contemplated under this Agreement and (x) the Initial Purchase Price shall be adjusted downward by an amount equal to the Allocated Amount of such excluded Property, (y) such excluded Property shall be deemed to be deleted from the Exhibits and Schedules to this Agreement, as applicable, hereunder and (z) such excluded Property shall be deemed to constitute an “Excluded Property” hereunder. Seller shall, at its agentsdiscretion, contractors or subcontractors conduct accompany Buyer during any invasive testing on the Real Property without Seller’s prior written approvalinspections as provided hereunder, which approval shall not be unreasonably withheld, conditioned or delayedincluding any Phase I Environmental Site Assessment. Buyer shall not materially interfere with furnish to Seller, free of costs, a copy of any Tenant, occupant written report prepared by or invitee of the Real Property in making for Buyer related to any such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and physical inspection of the Real Property and/or Properties as soon as reasonably possible after it is prepared. The confidentiality obligations of the Confidentiality Agreement shall be applicable to all information acquired by Buyer in connection with Buyer’s activities on the Real Propertycourse of its physical inspection of the Properties. Buyer hereby agrees to comply fully with any safety rules, regulations and shall indemnifyinstructions issued by Seller (and, defend and hold harmless Seller and Seller’s memberswhere Properties are operated by other parties, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ feessuch other parties) resulting therefrom, arising out of any entry onto regarding the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations actions of Buyer set forth in this Section 4.1(c) shall survive while upon, entering or leaving the termination of this Agreement and the Closing, as applicableProperties.
Appears in 1 contract
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) Leases, any restrictions of record and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreementapplicable laws, Buyer and its agents shall have the right, at Buyer’s expensefrom time to time during normal business hours, to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to Closing, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real PropertyProperty to examine the same and the condition thereof, at reasonable times during ordinary business hours, and to conduct such surveys and to make inspections such engineering and other inspections, tests and studies as Buyer deems shall determine to be reasonably necessary necessary, all at Buyer's sole cost and which may be accomplished without causing any material damage to the Real Property expense, including, without limitation, the right to conduct a phase Phase I environmental audit report and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990a roof survey and report. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with conduct or allow any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were inphysically intrusive testing of, on or under the Real Property without the prior written consent of the Seller. Buyer agrees to give Seller reasonable advance written notice of such examinations or surveys and to conduct such examinations or surveys during normal business hours to the extent practicable. Buyer agrees to conduct all examinations and surveys of the Property in accordance with all applicable laws and in a manner that will not materially interfere with the operations of Seller or Tenants thereon and will not harm or damage the Property or cause any claim adverse to Seller or any Tenant, and agrees to repair or restore the Property to its condition prior to any such entry; examinations or surveys immediately after conducting the same, except Buyer shall have no obligation to repair or restore pre-existing conditions merely uncovered by Buyer. Buyer shall not contact any current or prior Tenants concerning the Property without Seller's prior consent, which shall not be unreasonably withheld, conditioned, or delayed, and Seller shall have the right to be present during any such contacts. Seller shall use commercially reasonable efforts to facilitate and coordinate tenant interviews on Buyer’s behalf. Buyer hereby indemnifies and holds Seller and any agent, advisor, representative, affiliate, employee, director, partner, member, beneficiary, investor, servant, shareholder, subsidiary, trustee or other person or entity acting on Seller's behalf or otherwise related to or affiliated with Seller (collectively, "Seller Related Parties") harmless from and against any claims for injury or death to persons, damage to property or other losses, damages or claims, including, without limitation, claims of any tenant(s) then in possession, and including, without limitation, in each instance, attorneys' fees and litigation costs, arising out of (i) the entry on the Real Property by or any action of, any person or firm entering the Real Property on Buyer's behalf as aforesaid or, (ii) any breach by Buyer of its obligations under this Section, or (iii) any liens caused by or on behalf of Buyer, which indemnity shall survive the negligent Closing and any termination of this Agreement; provided, however, that the foregoing obligation to indemnify and hold harmless shall not extend to protect Seller from any liability for (a) any matter caused by or resulting from Seller’s negligence or willful misconduct of Seller misconduct, or (b) any Seller Group Indemniteepre-existing conditions at the Property merely discovered by Buyer (e.g., latent environmental contamination), so long as Buyer does not exacerbate such condition once discovered. The covenantsPrior to, agreements and obligations of as a condition to any entry on the Real Property by Buyer or its agents for the purposes set forth in this Section 4.1(c6.2, Buyer shall deliver to Seller a certificate of insurance evidencing commercial general liability coverage with a per occurrence limit of at least $1,000,000.00 and excess umbrella coverage for bodily injury and property damage in the amount of $2,000,000.00, in a form reasonably acceptable to Seller, covering any activity, accident or damage arising in connection with Buyer or agents of Buyer on the Real Property, and naming Seller, as an additional insured. The insurer under such policy must agree not to cancel, materially change or fail to renew the coverage provided by such policy, without first giving Seller five (5) shall survive the termination of days advance written notice. If Buyer terminates this Agreement for any reason other than a Seller default, Buyer shall provide, upon Seller’s request, copies of written results of any inspections or tests obtained by Buyer in connection with Buyer’s due diligence, excluding any drafts, attorney-client privileged communications, or internally generated work product. Notwithstanding the delivery of such written results, Seller acknowledges that Buyer will not make any representations or warranties regarding the same and that Seller shall not be entitled to rely upon the Closing, as applicablesame.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (1st stREIT Office Inc.)
Physical Inspection. Subject to During the limitations set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreement, Buyer shall have the right, at Buyer’s expense, to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingFeasibility Period, Buyer and its Buyer’s employees, agents, contractors and subcontractors consultants (“Buyer’s Parties”) shall have the right to enter upon the Real Property to perform such investigations and inspections of the Property, at reasonable times during ordinary business hoursincluding but not limited to soil, to make engineering, geological, structural and visual tests and inspections and tests (collectively, “Physical Inspections”) as Buyer deems reasonably necessary at Buyer’s sole cost and expense. In conducting such Physical Inspections, Buyer and Buyer’s Parties shall comply with all applicable laws, statutes, ordinances, rules and regulations. Buyer shall provide reasonable advance notice (which may be accomplished without causing any material damage telephonic) to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller at Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property address for notice set forth in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out Section 16.1 of any desired entry onto the Real Property by Buyer or Buyer’s Parties to perform Physical Inspections, its agentsstating the date on which Buyer desires such entry to occur, employeesthe name, contractors and/or subcontractorsaddress and telephone number of the Buyer’s Party who will make the entry, pursuant and the nature and location on the Real Property of the inspection to this Section 4.1(cbe performed. In the event that Buyer proposes to perform any destructive or invasive Physical Inspection, Seller shall approve or disapprove the proposed Physical Inspection within one (1) hereof, business day after receipt of such notice; provided, however, that Seller shall not unreasonably withhold approval to any invasive Physical Inspection. Seller’s failure to provide disapproval within said one (1) business day period shall be deemed Seller’s approval of such Physical Inspection. If Buyer or Buyer’s Parties take any sample from the Property in connection with an invasive Physical Inspection, Buyer shall provide to Seller a portion of such sample to allow Seller, if it so chooses, to perform its own testing. If Buyer does not be obligated purchase the Property and has received a refund of the Initial Deposit and Additional Deposit, then Buyer shall deliver copies of any reports relating to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Physical Inspections performed by Buyer or its representatives entered onto Buyer’s Parties. At Seller’s option, any Physical Inspection that Buyer desires to perform within the Real Property, Buildings may be scheduled before or after Seller’s regular working hours so as not to interfere with Seller’s use and occupancy of the accidental or inadvertent release Building. Buyer shall promptly repair any damage to the Buildings occurring as a result of any Hazardous Materials a Physical Inspection to the condition that were in, on or under the Real Property existed prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemniteedamage at its sole cost and expense. The covenants, agreements and obligations of Buyer set forth in this All Physical Inspections shall be subject to Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicable7.6 hereof.
Appears in 1 contract
Physical Inspection. Subject Buyer and its consultants and agents shall have the right, from time to time prior to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through earlier of the Closing or any earlier termination of this Agreement, to enter upon the Property to examine the same and the condition thereof, and to conduct such investigations, inspections, tests and studies as Buyer shall have determine to be reasonably necessary. Buyer shall not enter the rightProperty without the prior consent of Seller (not to be unreasonably withheld or delayed), at and shall not enter any leased premises without the prior consent of both Seller (not to be unreasonably withheld or delayed) and the Tenant. Buyer agrees to conduct such activities during normal business hours to the extent practicable. Seller agrees to make its property manager(s) available to be interviewed by Buyer. Buyer agrees to pay all costs of such investigations, inspections, tests and studies and to indemnify and hold Seller harmless from and against any claims for injury or death to persons or damage to property arising out of any action of any person or firm entering the Property on Buyer’s expensebehalf as aforesaid, to make inspections (including tests, surveys and other studies) which indemnity shall survive the Closing or any termination of this Agreement without the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real PropertyClosing having occurred. Prior to Closingperforming any environmental investigation of the Property, Buyer and its agents, contractors and subcontractors shall notify Seller of the name of the environmental consultant that will conduct the investigation. Buyer shall not have the right to enter upon disturb the Real soil at the Property, at reasonable times during ordinary business hoursor to perform any destructive or invasive testing, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approvalconsent. In requesting any such consent, which approval Buyer shall not provide Seller with a proposed written work plan describing the investigation, the name of the contractor that will perform the investigation, evidence of insurance coverage for the contractor, and in the case of soil testing a site plan showing where the soil will be unreasonably withheld, conditioned or delayeddisturbed. Buyer shall not materially interfere with any Tenantprovide Seller, occupant or invitee of the Real Property in making such inspections or testsat no cost to Seller, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with within 10 days following Buyer’s investigation and inspection receipt of the Real Property and/or in connection same, with a complete copy of any reports related to any such environmental, soil, or destructive/invasive testing. Neither Buyer nor any of Buyer’s activities on consultants shall release or report the Real Property. Buyer hereby agrees findings of any tests to and shall indemnify, defend and hold harmless Seller and any state or federal agency or other party without Seller’s membersprior written consent, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, unless Buyer's failure to so release a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes report or findings shall be a breach of action for personal injury applicable law which will expose Buyer to criminal or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicablematerial civil sanctions.
Appears in 1 contract
Samples: General Assignment and Assumption Agreement (Investors Real Estate Trust)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) any restrictions under any restrictions of record and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreementapplicable laws, Buyer and its agents shall have the right, at Buyer’s expense, from time to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating time prior to the Real Property. Prior to ClosingClosing during normal business hours, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real PropertyProperty to examine the same and the condition thereof, at reasonable times during ordinary business hours, and to conduct such surveys and to make inspections such engineering and other inspections, tests and studies as Buyer deems shall determine to be reasonably necessary necessary, all at Buyer’s sole cost and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990expense. Notwithstanding the foregoing, without Seller’s prior consent, which can be withheld or delayed in no event Seller’s sole discretion, Buyer shall Buyernot conduct or allow any physically intrusive testing of, on or under the Property. Buyer agrees to give Seller reasonable advance notice of any such examinations or inspections and to conduct such examinations or inspections during normal business hours to the extent practicable. Buyer agrees to conduct all examinations and surveys of the Property in a manner that will not interfere with the operations of Seller or Tenant thereon and will not harm or damage the Property or cause any claim adverse to Seller, and agrees to restore the Property to its agents, contractors condition prior to any such examinations or subcontractors conduct any invasive testing on surveys immediately after conducting the Real same. Buyer shall not contact Tenant concerning the Property without Seller’s prior written approval, which approval consent and Seller shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of have the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances right to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Propertypresent during any such contacts. Buyer hereby agrees to indemnifies and shall indemnify, defend and hold holds Seller harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims for injury or death to persons, damage to property or other losses, damages or claims, demandsincluding, without limitation, claims of any tenant(s) then in possession, and causes of action for personal injury or property damageincluding, and all damagesin each instance, judgments, liabilities, costs, attorneys’ fees and expenses (including reasonable attorneys’ fees) resulting therefromlitigation costs, arising out of any entry onto action of any person or firm entering the Real Property by on Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller ’s behalf as aforesaid or any Seller Group Indemnitee for any such claimsbreach by Buyer of its obligations under this Section, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) which indemnity shall survive the Closing and any termination of this Agreement and the ClosingAgreement. At Seller’s request, as applicableBuyer will provide a copy of any written inspection, test, report or summary to Seller within a reasonable time following Buyer’s receipt thereof.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Wells Real Estate Fund Xiv Lp)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to 4.1(d), during the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this AgreementInvestigation Period, Buyer shall have the right, at Buyer’s expense, to make non-invasive inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior During the Investigation Period, subject to Closingthe provisions of the Leases, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not violate the provisions of any of the Leases and shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby shall also provide evidence to Seller that Buyer carries liability insurance insuring Buyer’s physical inspection of the Property in an amount of at least One Million Dollars ($1,000,000). Buyer agrees to and shall indemnify, defend and hold Seller harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claimsloss and expense (including, demandswithout limitation, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ attorney’s fees) resulting therefromfrom claims and damages (including, but not limited to, injury to, or death of persons, loss or damage to property, the performance of any labor or services for Buyer, or the release, escape, discharge, emission, spillage, seepage or leakage by Buyer on or from the Property of any hazardous substance or any other violation by Buyer of any environmental law) caused by, arising out of, or incurred in connection with the exercise by Buyer of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to ’s rights under this Section 4.1(c) hereof, section; provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee except for any such claimsmatters caused by Seller’s negligence and damage, demands and/or causes of action loss or any such damages, judgments, liabilities, costs, fees or expenses potential loss caused by: (i) by the discovery of conditions that were present before Buyer or its representatives entered onto an existing condition. Any provision of this Agreement to the Real Propertycontrary notwithstanding, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations indemnification obligation of Buyer set forth in under this Section 4.1(c) section shall survive the Closing or any earlier termination of this Agreement and the Closing, as applicableAgreement.
Appears in 1 contract
Physical Inspection. Subject to For a period (the limitations set forth in this Section 4.1(c“Inspection Period”) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date execution and continuing through the Closing or any earlier termination delivery of this AgreementAgreement by both parties, and expiring sixty (60) days thereafter (such date is herein referred to as the “Inspection Period Expiration Date”), Buyer shall have the rightright to have performed a physical and engineering inspection, at measurement and audit of the Property, and Seller shall cooperate with Buyer in connection therewith, provided that Seller shall not be obligated to incur any out of pockets costs to do so. The inspection, audit and measurement of the Property’s operation, condition and maintenance shall include, without limitation, such environmental and engineering inspections, reviews and assessments that Buyer deems appropriate, including, without limitation a Phase 1 environmental audit. In the event the initial Phase I environmental audit recommends a Phase 2 audit, Buyer may seek such study, provided, however, that the scope of any such Phase 2 investigations shall be subject to the prior approval of Seller, which shall not be unreasonably withheld, delayed or conditioned (and which consent shall be deemed given for all purposes in the absence of Seller’s response within five (5) days of Buyer’s expense, request therefor). Buyer agrees to make inspections (including tests, surveys be solely responsible for the conduct of Buyer’s representatives on and other studies) of adjacent to the Real Property and shall assume and pay for all matters relating theretoexpenses incurred in connection with its inspections. At all times during the presence of Buyer or Buyer’s representatives on the Property, Buyer agrees that Buyer will not allow, and Buyer’s representatives will not conduct, any physically invasive testing of, on, or under the Property without first obtaining Seller’s written consent, which consent shall not be unreasonably withheld. Buyer agrees to return the Property to substantially the same condition and cleanliness existing before entry and/or occupation by Buyer’s representatives, including, but not limited to, soils and geologic conditionssealing xxxxx or other similar subsurface investigations. Buyer may disclose confidential information to Buyer’s representatives to the extent each needs to know confidential information for the sole purpose of evaluating the Property, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality provided Buyer takes all reasonable measures to assure that Buyer’s representatives keep such information confidential. If any portion of the construction Property suffers physical damage by reason of the ImprovementsInspection, the habitabilityBuyer will, merchantabilityat its sole cost and expense, marketability, profitability repair all such damage or fitness for a particular purpose replace any damaged portion of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating (except (i) to the Real Property. Prior extent caused by Seller’s negligence or willful misconduct or (ii) any claims of diminution in the value of the Property as a consequence of the results revealed by the Inspection) to Closingsubstantially the same condition as existed before the Inspection; provided, however, that Buyer and its agents, contractors and subcontractors shall have the right no obligation to enter upon the Real Propertyremediate, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing repair or restore any material damage physical or environmental condition to the Real extent existing or affecting the Property including, without limitation, the right prior to conduct a phase I environmental audit and an investigation with respect to the Real PropertyBuyer’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayedinspection and/or discovery thereof. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend indemnify and hold Seller harmless Seller and Seller’s membersfrom any loss, managersinjury, partnersliability, officersdamage or expense, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, fees and costs, fees which Seller may incur as a result of (a) any act or expenses caused by: (i) the discovery omission of conditions that were present before Buyer or its agents or representatives entered onto arising in connection with any tests or inspections conducted by Buyer or its agents or representatives, except to the Real Propertyextent caused by Seller’s gross negligence or willful misconduct, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (iib) the negligent or willful misconduct failure of Seller or any Seller Group IndemniteeBuyer to restore the Property in accordance with this Section 7.3. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) foregoing shall survive the termination of this Agreement and or the Closing, as applicableapplicable for a period of six (6) months.
Appears in 1 contract
Samples: Agreement of Sale (Incyte Corp)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) Leases, any restrictions of record and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreementapplicable laws, Buyer and its agents shall have the right, at Buyer’s expensefrom time to time for so long as this Agreement remains in effect, to make inspections (including testsduring normal business hours, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to Closing, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real PropertyProperty to examine the same and the condition thereof, at reasonable times during ordinary business hours, and to conduct such surveys and to make inspections such engineering and other inspections, tests and studies as Buyer deems shall determine to be reasonably necessary necessary, all at Buyer's sole cost and which may be accomplished without causing any material damage to the Real Property expense, including, without limitation, the right to conduct a phase Phase I environmental audit report and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990a roof survey and report. Notwithstanding the foregoing, Buyer shall not conduct or allow any physically intrusive testing of, on or under the Property, without Seller's consent, which consent can be withheld in no event Seller's sole discretion. Buyer agrees to give Seller reasonable advance written notice of such examinations or surveys and to conduct such examinations or surveys during normal business hours to the extent practicable. Buyer agrees to conduct all examinations and surveys of the Property in accordance with all applicable laws and in a manner that will not interfere in any material respect with the operations of Seller or Tenants thereon and will not knowingly harm or damage the Property or cause any claim adverse to Seller or any Tenant, and agrees to repair or restore the Property to its condition prior to any such examinations or surveys immediately after conducting the same, reasonable wear and tear excepted. Buyer shall Buyer, its agents, contractors not make any on-site contact with any current or subcontractors conduct any invasive testing on prior Tenants concerning the Real Property without Seller’s 's prior written approvalconsent, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and Seller shall return and restore have the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances right to be placed against present during any such contacts, provided that the Real Property in connection with Buyer’s investigation and inspection unavailability of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless a representative of Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated a basis to indemnify, defend delay or hold harmless Seller or any Seller Group Indemnitee hinder an on-site contact by Buyer. Except for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent negligence or willful misconduct of Seller and its agents, employees and contractors, and except to the extent of any claims resulting from Buyer's mere discovery of any existing conditions at the Property (including any diminution of value of the Property resulting from such discovery), Buyer hereby indemnifies and holds Seller and any agent, advisor, representative, affiliate, employee, director, partner, member, beneficiary, investor, servant, shareholder, subsidiary, trustee or other person or entity acting on Seller's behalf or otherwise related to or affiliated with Seller (collectively, "Seller Related Parties") harmless from and against any claims for injury or death to persons, damage to property or other losses, damages or claims, including, without limitation, claims of any tenant(s) then in possession, and including, without limitation, in each instance, reasonable attorneys' fees and litigation costs, arising out of (i) the entry on the Property by or any Seller Group Indemniteeaction of, any person or firm entering the Property on Buyer's behalf as aforesaid or, (ii) any breach by Buyer of its obligations under this Section, or (iii) any liens caused by or on behalf of Buyer, which indemnity shall survive the Closing and any termination of this Agreement. The covenantsPrior to, agreements and obligations of as a condition to any entry on the Property by Buyer or its agents for the purposes set forth in this Section 4.1(c6.2, Buyer shall deliver to Seller a certificate of insurance evidencing commercial general liability coverage (including coverage for contractual indemnities) shall survive with a combined single limit of at least $2,000,000.00 and excess umbrella coverage for bodily injury and property damage in the termination amount of this Agreement $5,000,000.00, in a form reasonably acceptable to Seller, covering any activity, accident or damage arising in connection with Buyer or agents of Buyer on the Property, and the Closingnaming Seller, as applicablean additional insured.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (American Realty Capital - Retail Centers of America, Inc.)
Physical Inspection. Subject to the limitations Leases, Buyer and its agents shall have the right, through the expiration of the Due Diligence Period, during normal business hours, to enter upon the Property to examine the same and the condition thereof, and to conduct such surveys and to make such engineering and other inspections, tests and studies as Buyer shall determine to be reasonably necessary, all at Buyer’s sole cost and expense, including, without limitation, a Phase I (and a Phase II report if the Phase I report expressly recommends it), environmental report and a roof survey and report. Notwithstanding the foregoing, Buyer shall not conduct or allow any physically intrusive testing of, on, or under the Property without the prior consent of Seller, which consent shall not be unreasonably withheld. Bxxxx agrees to give Seller reasonable advance written notice of such examinations or surveys and to conduct such examinations or surveys during normal business hours to the extent practicable. Bxxxx agrees to conduct all examinations and surveys of the Property in accordance with all applicable laws and in a manner that will not unreasonably interfere with the operations of Seller or Tenants thereon and will not harm or damage the Property or cause any claim adverse to Seller or any Tenant, and agrees to repair or restore the Property to its condition prior to any such examinations or surveys immediately after conducting the same. Buyer shall have the right to meet with current or prior Tenants concerning the Property, and Seller shall have the right to be present during any such contacts. Buyer hereby indemnifies and holds Seller and any agent, advisor, representative, affiliate, employee, director, partner, member, beneficiary, investor, servant, shareholder, subsidiary, trustee, or other person or entity acting on Seller’s behalf or otherwise related to or affiliated with Seller (collectively, “Seller Related Parties”) harmless from and against any claims for injury or death to persons, damage to property or other losses, damages or claims, including, without limitation, claims of any tenant(s) then in possession, and including, without limitation, in each instance, attorneys’ fees and litigation costs (collectively, “Claims”), arising out of (i) the entry on the Property by or any action of, any person or firm entering the Property on Buyer’s behalf as aforesaid or, (ii) any breach by Buyer of its obligations under this Section 6.2, or (iii) any liens caused by or on behalf of Buyer. The indemnity provisions of this Section 6.2 shall survive Closing or the termination of this Agreement; however, if Buyer secures the insurance pursuant to the terms of this Section 6.2, the aforesaid indemnity provisions shall survive the Closing or any termination of this Agreement for a period of only six (6) months. Notwithstanding anything to the contrary in this Section 6, the indemnification of Seller Related Parties shall not apply to any Claims to the extent caused by (a) Seller’s negligence or willful misconduct, or (b) Buyer’s mere discovery of pre-existing conditions on the Property. Prior to, and as a condition to any entry on the Property by Buyer or its agents for the purposes set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreement6.2, Buyer shall have deliver to Seller a certificate of insurance evidencing commercial general liability coverage with a per occurrence limit of at least $1,000,000.00 per occurrence and $2,000,000.00 aggregate and excess umbrella coverage for bodily injury and property damage in the rightamount of $4,000,000.00, at Buyer’s expensein a form reasonably acceptable to Seller, to make inspections (including testscovering any activity, surveys and other studies) accident, or damage arising in connection with Buyer or agents of Buyer on the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, and naming Seller as an additional insured. If the effect of applicable planningClosing does not occur for any reason other than a default by Seller, zoning and subdivision statutesif requested by Seller, ordinances, regulations, restrictions and permits, the character and amount Buyer shall provide a copy of any fees written inspection, test, report, or charges that must summary obtained by Buyer (the “Buyer Reports”) to Seller; provided, however, such Buyer Reports shall be paid delivered by Buyer to further develop, improve and/or occupy the Real Property and all other matters relating Seller without any representation or warranty by Buyer whatsoever as to the Real Propertytruth, completeness or accuracy thereof, and Seller shall reimburse Buyer for the actual out-of-pocket costs incurred by Buyer of any specific Buyer Reports requested by Sxxxxx. Prior to ClosingIn the event Buyer timely delivers an Approval Notice, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real PropertyProperty after the delivery of such Notice for the purposes of and pursuant to the terms and conditions of this Section 6.2. However, at reasonable times any such post-Approval Notice inspections shall be during ordinary normal business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to shall give Seller no less than two (2) business days’ prior written notice before such entry upon the Real Property including, without limitation, Property. Seller shall have the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990accompany Buyer during any such Inspections. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, howeverIn addition, Buyer shall not be obligated have any right to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of terminate this Agreement and if during any post-Approval Notice inspections, Bxxxx discovers any physical condition of the Closing, as applicableProperty that is unsatisfactory to Buyer.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (1st stREIT Office Inc.)
Physical Inspection. Subject to For a period (the limitations set forth in this Section 4.1(c"Inspection Period") and notwithstanding any provision to commencing on the contrary in second (2nd) business day next following the date upon which Buyer shall receive from Seller a fully-executed counterpart of this Agreement, commencing on and expiring twenty (20) days thereafter (such date is herein referred to as the Effective Date "Inspection Period Expiration Date"), Buyer shall have the right to have performed a physical and continuing through mechanical inspection, measurement and audit of the Closing Property, and Seller shall cooperate with Buyer and shall furnish to Buyer such information, materials and documents as Buyer may reasonably request. The inspection, audit and measurement of the Property's operation, condition and maintenance shall include, without limitation, such environmental and engineering inspections, reviews and assessments that Buyer deems appropriate. In the event Seller shall fail to deliver or make available any earlier termination item or information material to Buyer's review of the Property and required to be delivered or made available pursuant to the terms of this Section within five (5) business days next following the date upon which Buyer shall receive from Seller a fully-executed counterpart of this Agreement, then at Buyer's election, the Inspection Period Expiration Date (and the Closing Date) shall be extended by one day for each day that the delivery or availability of such item is delayed. If Buyer, at Buyer's sole and absolute discretion, shall find such inspection(s) to be unsatisfactory for any reason whatsoever, Buyer shall have the right, at Buyer’s expenseits option, to make inspections terminate this Agreement on or before the Inspection Period Expiration Date, and upon such termination, the Deposit shall be immediately refunded to the Buyer, and thereupon the parties hereto shall have no further liabilities one to the other with respect to the subject matter of this Agreement. Buyer agrees that it shall not unreasonably interfere with tenants in performing its inspection. Buyer further agrees that (including testsi) all such activity shall be done in a good and workmanlike manner and the Property shall at all times be kept in a safe condition, surveys and other studies(ii) immediately after each such survey, assessment or evaluation, Buyer shall restore to their prior condition those portions of the Real Property Premises disturbed or damaged by Buyer's activity, (iii) Buyer shall defend, indemnify and save Seller harmless from and against all matters relating theretoclaims, includingactions, but not limited tosuits, soils damages, losses, costs and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to Closing, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property expenses (including, without limitation, the right attorneys' fees) instituted against or incurred by Seller as a result of or relating to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing activity on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property Premises by Buyer, its agents, employees, contractors and/or subcontractorsdesignees, pursuant to this Section 4.1(crepresentatives and independent contractors, and (iv) hereof, provided, howeverif requested by Seller, Buyer shall not be obligated provide Seller with a certificate of comprehensive general liability insurance, in form, in an amount and issued by a carrier reasonably acceptable to indemnifySeller, defend or hold harmless insuring Seller or any from all risks and loss associated with Buyer's exercise of its rights hereunder. During the Inspection Period, Buyer and its agents, employees, designees, representatives and independent contractors also shall have the right, at Buyer's expense, to perform such other due diligence investigations regarding the Property as Buyer deems necessary, including, without limitation, title, zoning, municipal code compliance and other investigations. Buyer may also conduct discussions with the appropriate local, state and federal agencies, authorities and governmental bodies regarding the Property. In connection with such inspection, and without limiting the generality of Seller's obligations hereunder, Seller Group Indemnitee for any such claimsagrees to deliver to Buyer, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: within five (i5) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicable.days:
Appears in 1 contract
Physical Inspection. Subject In addition to the limitations set forth items described in this Section 4.1(c) 6.1, Seller will make the Property available for inspection by Purchaser, and notwithstanding any provision to Purchaser may, before the contrary in this Agreement, commencing on end of the Effective Date and continuing through the Closing or any earlier termination of this Agreement, Buyer shall have the rightFeasibility Period, at Buyer’s expensePurchaser's risk, to make inspections (including tests, surveys conduct an engineering and/or market and other studies) economic feasibility study of the Real Property and all matters relating theretoundertake such physical and environmental inspection of the Property as Purchaser deems appropriate, including, but not limited to, soils soil borings, samplings and geologic conditions, location of property lines, utility availability other tests and use restrictions, environmental conditions, engineering inspections as Purchaser deems necessary to determine the manner or quality physical condition of the construction Property, including but not limited to whether any Hazardous Materials (as hereinafter defined) exist at the Property, and, if so, to determine the appropriate manner and cost of removal or other corrective measures with respect to the same, and an inspection of all books and records and financial information pertaining thereto. During the Feasibility Period, Seller shall cooperate with Purchaser in its inspection of the Improvements, Property and Purchaser shall use good faith efforts to minimize any disruption of a interference with the habitability, merchantability, marketability, profitability or fitness for a particular purpose operation of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating the use and enjoyment of the Property by Tenants. Such inspections shall be conducted at reasonable times upon reasonable oral or written notice to the Real PropertySeller's property manager. Prior to Closing, Buyer and its agents, contractors and subcontractors Seller shall have the right to enter upon the Real Propertydesignate a representative to accompany Purchaser's employees, at reasonable times during ordinary business hoursagents, and independent contractors on any such inspections. Purchaser hereby agrees to make inspections pay, protect, defend, indemnify and tests as Buyer deems reasonably necessary save Seller harmless against all liabilities, obligations, claims (including mechanic's lien claims), damages, penalties, causes of action, judgments, costs and which may be accomplished without causing any material damage to the Real Property expenses (including, without limitation, attorneys' fees and expenses) imposed upon, incurred by or asserted against Seller in connection with or arising out of the right to conduct a phase I environmental audit and an investigation with respect to entry upon the Real Property’s compliance with Property before Closing by Purchaser's employees, agents or independent contractors and the requirements actions of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing such persons on the Real Property without at any time before Closing. In the event any part of the Property is damaged or excavated by Purchaser, its employees, agents or independent contractors, Purchaser agrees in the event its purchase hereunder is not consummated, to make such additional payments to Seller as may be reasonably required to return the Property to its condition immediately prior to such damage or excavation or, at Seller’s prior written approval's option, to cause such work to be done. Notwithstanding any provision to the contrary herein, the indemnity which approval is the subject of this paragraph shall not be unreasonably withheld, conditioned cover or delayedapply to any already existing Hazardous Materials situated on or about the Property or any damages or liability arising therefrom unless such damage results from the gross negligence and/or willful conduct of Purchaser or its agents. Buyer Purchaser's obligations under this subparagraph shall not materially interfere with any Tenant, occupant survive the expiration or invitee termination of the Real Property in making such inspections or teststhis Agreement, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicable.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Connecticut General Realty Investors Iii LTD Partnership)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c4.1(d) and notwithstanding any provision the restrictions in the Existing PSA to which Seller, as the contrary in this Agreementbuyer thereunder, commencing on is subject, under the Effective Date and continuing through Existing PSA, during the Closing or any earlier termination of this AgreementInvestigation Period, Buyer shall have the right, at Buyer’s 's expense, to make such non-invasive inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingDuring the Investigation Period, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hourshours and at least 72 hours prior written notice, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property includingProperty, without limitation, provided Seller shall have the right to conduct a phase I environmental audit have its own personnel and an investigation consultants present during any such inspections and tests and any such inspections shall not interfere with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayedbusiness operations at the Property. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Real Property to substantially its original physical condition immediately prior to such inspections or tests. Without Seller’s prior consent, not to be unreasonably withheld and otherwise subject to the provisions of the Existing PSA, Buyer shall not permit conduct any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on invasive testing at the Real Property, provided that Seller shall reasonably cooperate with Buyer to obtain, at Buyer’s sole cost and expense, reliance letters in favor of Buyer from the consultants that conducted any phase I and phase II environmental reports obtained by Seller with respect to the Property. Buyer hereby agrees to and shall indemnify, defend indemnify and hold Seller harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claimscosts, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costslosses, fees expenses, liens or claims (including, without limitation, court costs and expenses (including reasonable attorneys’ feesfees and disbursements) resulting therefrom, arising out of or relating to any entry onto on the Real Property by Buyer, its agents, employeesemployees or contractors in the course of performing the inspections, contractors and/or subcontractorstestings or inquiries provided for in this Agreement, pursuant including, without limitation, any release of Hazardous Materials or any damage to this Section 4.1(c) hereofthe Property caused by Buyer or Buyer’s agents, provided, however, Buyer shall not be obligated except with respect to indemnify, defend any pre-existing conditions or hold harmless to the extent caused by Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group IndemniteeRelated Party. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) foregoing indemnity shall survive beyond the Closing, or, if the sale is not consummated, beyond the termination of this Agreement and the Closing, as applicableAgreement.
Appears in 1 contract
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to 4.1(d), during the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this AgreementInvestigation Period, Buyer shall have the right, at Buyer’s 's expense, to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingDuring the Investigation Period, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Real Property to substantially its original physical condition immediately prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, protect, defend and hold Seller harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all losses, damages, claims, demands, and causes of action for personal injury or property damage, and all damagesaction, judgments, liabilitiesdamages, costs, fees costs and expenses (including reasonable fees of attorneys’ fees) resulting therefrom, arising out that Seller actually suffers or incurs as a result of any entry onto physical damage to the Real Property or bodily injury caused by Buyer, Buyer or its agents, employees, employees or contractors and/or subcontractors, in connection with any inspections or tests conducted pursuant to this Section 4.1(c) hereof, 4.1(d); provided, however, Buyer shall not be obligated have no obligation to indemnify, protect, defend or hold Seller harmless Seller or any Seller Group Indemnitee for from any such claims, demands and/or causes of action liabilities or any such damages, judgments, liabilities, costs, fees or expenses caused by: losses resulting from (ix) the mere discovery of conditions a preexisting condition that were present before is not exacerbated by the negligence or willful misconduct of Buyer or its representatives entered onto the Real PropertyBuyer’s agents, employees or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; contractors or (iiy) the negligent negligence or willful misconduct of Seller or any its affiliates, employees, agents, contractors or invitees. Buyer’s obligation to indemnify Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in pursuant to this Section 4.1(c4.1(d) shall survive the termination of this Agreement and or the Closing, as applicableClosing of the sale contemplated herein for a period of six (6) months.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions
Physical Inspection. Subject to the limitations provisions set forth in this Agreement, including this Section 4.1(c) 4.01, Purchaser and notwithstanding any provision Purchaser’s Representatives shall have access to the contrary Property to make such examinations, measurements, soil borings and excavations of, or with respect to, the Property as Purchaser desires and to investigate all matters relevant to its acquisition, usage, development, operation and marketability of the Property. Subject to the provisions set forth in this Agreement, commencing including this Section 4.01, Seller hereby grants Purchaser and Purchaser’s Representatives reasonable access to the Property during the Due Diligence Period for purposes of facilitating the inspection and investigations described above. Purchaser and Purchaser’s Representatives hereby understand and agree that they shall enter upon the Property at their own risk. Seller shall have no duty to inspect the Property and shall have no duty to warn any person of any latent or patent defect, condition or risk that may exist on the Effective Date and continuing through Property or that might be incurred in the Closing or any earlier termination exercise of this Agreementthe rights granted herein; provided, Buyer however, Seller shall have the rightobligation to disclose the existence of any of the foregoing conditions or risks to the extent of, but only to the extent of, Seller’s actual knowledge of the same. Purchaser, at Buyer’s its expense, to make inspections shall restore the Property (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to Closing, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property Buildings) to substantially its original the same condition as existed immediately prior to such inspections or testsany changes made by Purchaser. Buyer Purchaser shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnifyprotect, defend defend, indemnify and hold Seller entirely harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all loss, damage, injury, liability or claims of any kind or character to any person or property (including any property adjacent to the Property) arising from, caused by otherwise related to Purchaser’s or Purchaser’s Representatives’ use of or entry upon the Property or arising from, caused by or otherwise related to any act or omission of Property or arising from, caused by or otherwise related to any accident on the Property or any fire or other casualty on the Property caused by any use of the Property by Purchaser or Purchaser’s Representatives, or any violation or alleged violation by Purchaser or Purchaser’s Representatives of any law or regulation now in effect or hereafter enacted. Further, Purchaser agrees to indemnify and hold Seller harmless from any costs, liens, losses, claims, demandsliabilities or expenses, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefromfees and costs, arising out of any or in connection with its or Purchaser’s Representatives’ activities on the Property as a result of such entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer 4.01(a). This indemnity shall not be obligated to indemnify, defend or hold harmless Seller or survive the Closing Date. No indemnity by Purchaser hereunder shall include any Seller Group Indemnitee indemnification for any such claims, demands and/or causes of action matter resulting from Purchaser or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the Purchaser’s Representatives discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were incondition at, on or under adjacent to the Real Property prior to such entry; Property, including without limitation, the presence of any “hazardous waste” or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement “hazardous substance” and the Closingoperation of the Property in violation of any applicable laws. Purchaser’s Representatives shall maintain in full force and effect statutory worker’s compensation insurance coverage and commercial general liability insurance (which includes, as applicablebut is not limited to, contractual liability coverage) covering claims for bodily injury and property damage occurring on, in or about the Property, with limits of at least $2,000,000 combined single limit per occurrence (or with limits of at least $1,000,000 combined single limit per occurrence if coupled with umbrella liability coverage of at least $2,000,000). All insurance policies maintained by Purchaser and Purchaser’s Representatives pursuant to this subsection shall be primary insurance and not excess or contributory with respect to any insurance or self-insurance maintained by Seller. All activities undertaken by Purchaser or Purchaser’s Representatives on the Property during the Due Diligence Period shall fully comply with all applicable laws, rules and regulations of all governmental and quasi-governmental authorities, including laws relating to worker safety and to proper disposal of any samples taken from the Property. Purchaser shall be solely responsible for the off-site disposal of any samples taken or waste associated therewith.
Appears in 1 contract
Samples: Purchase Agreement (Wells Real Estate Investment Trust Ii Inc)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to 4.1(d), during the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this AgreementInvestigation Period, Buyer shall have the right, at Buyer’s 's expense, to make non-invasive inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingDuring the Investigation Period, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, to make non-invasive inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property and which may be accomplished without delaying the on-going construction activities at the Real Property. Prior to entry onto the Real Property, Buyer shall provide Seller with a certificate of insurance evidencing that Buyer maintains a commercial general liability policy that names Seller as an additional insured, in an amount of not less than $2,000,000. Buyer agrees that any on-site inspections must be conducted only during the hours of between 6:00 a.m. and 3:00 p.m. on Mondays-Fridays, and at the option of Seller, shall be conducted in the presence of a Seller representative. All such on-site inspections must be preceded by not less than one (1) Business Day’s prior written notice to Seller and shall comply with any customary requirements imposed by the general contractor on access to on-going construction sites. Buyer agrees to check-in with the on-site superintendent prior to proceeding with any such on-site inspection. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all claims, actions, suits, losses or damages (including, without limitation, limitation reasonable attorney’s fees and court costs) arising out of the right to conduct a phase I environmental audit and an investigation with respect to entry onto the Real Property’s compliance with Property by Buyer prior to Closing, and the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall commencement or conduct by Buyer, its agents, employees and contractors or subcontractors conduct any invasive testing of activities prior to Closing on the Real Property without Seller’s prior written approvalallowed hereunder, which approval shall including, but not be unreasonably withheldlimited to, conditioned or delayed. Buyer shall not materially interfere with any Tenant, occupant or invitee of the Real Property in making such inspections or tests, personal injury (including death) and shall return and restore the Property to substantially its original condition prior to such inspections or testsproperty damage. Buyer shall not permit any liens construction, mechanic’s, materialman’s or encumbrances other lien to be placed filed against the Real Property in connection with as the result of any work, labor, service or materials performed or furnished by, for or to Buyer’s investigation and inspection of the Real Property , its employees, agents and/or in connection with Buyer’s activities on contractors. If any such lien shall at any time be filed against the Real Property, Buyer shall, without expense to Seller, cause the same to be discharged of record by payment, bonds, order of a court of competent jurisdiction or otherwise, within twenty (20) days after Buyer’s notice thereof. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, Losses arising out of the filing of any entry onto such liens and/or the failure of Buyer to cause the discharge thereof as same is provided herein. Buyer shall return and restore the Real Property by Buyer, to substantially its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property original physical condition immediately prior to such entry; inspections or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the termination of this Agreement and the Closing, as applicabletests.
Appears in 1 contract
Samples: Memorandum of Purchase Option (Innovative Industrial Properties Inc)
Physical Inspection. Subject Buyer and its consultants and agents shall have the right, from time to time prior to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through earlier of the Closing or any earlier termination of this Agreement, to enter upon the Property to examine the same and the condition thereof, and to conduct such investigations, inspections, tests and studies as Buyer shall have determine to be reasonably necessary. Buyer shall not enter the rightProperty without the prior consent of Seller, at and shall not enter any leased premises without the prior consent of both Seller and the Tenant. Buyer agrees to conduct such activities during normal business hours to the extent practicable. Buyer agrees to pay all costs of such investigations, inspections, tests and studies and to indemnify and hold Seller harmless from and against any claims for injury or death to persons or damage to property arising out of any action of any person or firm entering the Property on Buyer’s expense, to make inspections behalf as aforesaid (including tests, surveys and other studies) provided that for the avoidance of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditionsdoubt, the manner foregoing indemnity shall not be applicable if such claims arise from or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of are in connection with any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating such damages to the Real Propertyextent resulting from a pre-existing condition, unless exacerbated or adversely affected by Buyer or any of its employees, consultants, agents, prospective lenders (and their consultants) or representatives, and, in such case, only to the extent so exacerbated), which indemnity shall survive the Closing or any termination of this Agreement without the Closing having occurred. Prior to Closingperforming any environmental investigation of the Property (other than a Phase I environmental site assessment), Buyer and its agents, contractors and subcontractors shall notify Seller of the name of the environmental consultant that will conduct the investigation. Buyer shall not have the right to enter upon disturb the Real soil at the Property, at reasonable times during ordinary business hoursor to perform any destructive or invasive testing, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property including, without limitation, the right to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on the Real Property without Seller’s prior written approvalconsent. In requesting any such consent, which approval shall not be unreasonably withheld, conditioned or delayed. Buyer shall not materially interfere provide Seller with any Tenanta proposed written work plan describing the investigation, occupant or invitee the name of the Real Property in making such inspections or testscontractor that will perform the investigation, evidence of insurance coverage for the contractor, and shall return and restore in the Property to substantially its original condition prior to such inspections or testscase of soil testing a site plan showing where the soil will be disturbed. If Buyer shall not permit any liens or encumbrances to be placed against the Real Property terminates this Agreement (other than in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on the Real Property. Buyer hereby agrees to and shall indemnify, defend and hold harmless a Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”default hereunder), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, arising out of any entry onto the Real Property by Buyer, its agents, employees, contractors and/or subcontractors, pursuant to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated provide Seller, at no cost to indemnifySeller, defend or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemnitee. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) shall survive the within 10 days following Buyer’s termination of this Agreement and Agreement, with a complete copy of any reports related to any such environmental, soil, or destructive/invasive testing. Neither Buyer nor any of Buyer’s consultants shall release or report the Closingfindings of any tests to any state or federal agency or other party without Seller’s prior written consent, as applicableunless Buyer’s failure to so release a report or findings shall be a breach of applicable law which will expose Buyer to criminal or material civil sanctions.
Appears in 1 contract
Samples: General Assignment and Assumption Agreement (Investors Real Estate Trust)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreement4.1(d), Buyer shall have the right, at all times after the Effective Date, at Buyer’s 's expense, to continue to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto; provided, includinghowever, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditionsthat under no circumstance shall Buyer be afforded any additional rights under this Agreement, the manner Transaction Documents or quality otherwise as a result of such continuing investigation. In connection with the construction foregoing, subject to Buyer delivering to Seller a minimum of the Improvements, the habitability, merchantability, marketability, profitability one (1) Business Day's advance notice (which notice may be delivered telephonically or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid by e-mail to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingXxxxxxxx X. Xxxx), Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, hours to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property includingProperty. Buyer shall contact Xxxxxxxx X. Xxxx at (000) 000-0000, without limitation, the right in advance to conduct a phase I environmental audit and an investigation with respect to the Real Property’s compliance with the requirements of Title III schedule all such on-site inspections. Buyer shall observe all appropriate safety precautions in conducting any such inspections of the Americans with Disabilities Act of 1990Property. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any environmental or physically invasive testing on the Real Property without Seller’s 's prior written approval, which approval may be granted or withheld in the sole and absolute discretion of Seller. Buyer agrees that its inspection rights hereunder shall not be unreasonably withheld, conditioned or delayed. subject to the rights of tenants occupying the Real Property and the rights held under easements and other documents recorded against the Real Property and that Buyer shall not materially unreasonably interfere with or interrupt any Tenant, occupant or invitee of the Real Property in making such inspections or tests. Prior to such entry upon the Real Property, Buyer shall deliver to Seller a certificate of insurance evidencing that Buyer, and its agents, contractors and subcontractors, have procured commercial general liability insurance coverage for bodily injury and property damage in an amount of at least One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in excess umbrella liability insurance coverage, naming Seller as an additional insured under such insurance, all of which shall return be in form and restore the Property substance reasonably satisfactory to substantially its original condition prior to such inspections or testsSeller. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s 's investigation and inspection of the Real Property and/or in connection with Buyer’s 's activities on the Real Property, but in the event any such lien is placed against the Real Property, Buyer shall pay and discharge such lien within ten (10) Business Days after Buyer becomes aware of the attachment of such lien. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s 's members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, Tenants, occupants, successors and assigns (eachcollectively, a “Seller Group IndemniteeSeller's Representatives”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, Losses arising out of any entry onto Buyer's investigation and inspection of the Real Property by and/or Buyer's and its contractors' and agents' activities on or about the Real Property conducted prior to and/or after the Effective Date, its agentsand/or any damage to the Real Property or personal injury resulting from any of the activities which Buyer conducts (or has conducted) on or about the Real Property, employees, contractors and/or subcontractors, pursuant except to this Section 4.1(c) hereof, provided, however, Buyer shall not be obligated to indemnify, defend the extent such Losses arise out of the negligence or hold harmless willful misconduct of Seller or Seller's Representatives or the mere discovery by Buyer of any Seller Group Indemnitee for any such claimspre-existing condition on the Real Property, demands and/or causes except to the extent the negligence or willful misconduct of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, released or the accidental or inadvertent release of any Hazardous Materials that were in, exacerbated such pre-existing condition on or under the Real Property prior to such entryinvestigations. Buyer further hereby covenants and agrees to promptly repair any such damage to the Property caused by reason of Buyer's investigation or inspection of the Real Property and/or Buyer's activities on or about the Real Property; provided, however, that the scope and manner of such repair shall be subject to Seller's prior reasonable approval. Furthermore, Buyer shall not contact or have any discussions with any Tenants without: (i) first giving Seller prior notice (which notice may be delivered telephonically or by e-mail to Xxxxxxxx X. Xxxx); and (ii) giving Seller a reasonable opportunity to be present, in person or by telephone, during such discussions. Except in connection with the negligent preparation of a so-called “Phase I” environmental report or willful misconduct of Seller a so-called “zoning report” with respect to the Property, Buyer will also not contact the city, county or any other governmental agencies without first giving Seller Group Indemniteereasonable prior notice (which notice may be delivered telephonically or by e-mail to Xxxxxxxx X. Xxxx) and a reasonable opportunity to be present during or participate in such discussions. Buyer shall contact Xxxxxxxx X. Xxxx at (000) 000-0000, to schedule all such meetings and discussions. Buyer acknowledges and agrees that it is being afforded an adequate opportunity to conduct a comprehensive investigation and review of the Property. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c4.1(d) shall survive the termination of this Agreement and the Closing, as applicable.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to 4.1(d), during the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this AgreementInvestigation Period, Buyer shall have the right, at Buyer’s 's expense, to make such non-invasive inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto, including, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditions, the manner or quality of the construction of the Improvements, the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingDuring the Investigation Period, Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hourshours and at least 72 hours prior written notice, to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property includingProperty, without limitation, provided Seller shall have the right to conduct a phase I environmental audit have its own personnel and an investigation consultants present during any such inspections and tests and any such inspections shall not interfere with respect to Seller’s business operations at the Real Property’s compliance with the requirements of Title III of the Americans with Disabilities Act of 1990. Notwithstanding the foregoing, in no event Buyer shall Buyer, its agents, contractors or subcontractors conduct any invasive testing on return and restore the Real Property without to substantially its original physical condition immediately prior to such inspections or tests. Without Seller’s prior written approvalconsent, which approval shall not to be unreasonably withheld, conditioned or delayed. , Buyer shall not materially interfere with conduct any Tenant, occupant or invitee of the Real Property in making such inspections or tests, and shall return and restore the Property to substantially its original condition prior to such inspections or tests. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s investigation and inspection of the Real Property and/or in connection with Buyer’s activities on invasive testing at the Real Property. Buyer hereby agrees to and shall indemnify, defend indemnify and hold Seller harmless Seller and Seller’s members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, successors and assigns (each, a “Seller Group Indemnitee”), from and against any and all claimscosts, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costslosses, fees expenses, liens or claims (including, without limitation, court costs and expenses (including reasonable attorneys’ feesfees and disbursements) resulting therefrom, arising out of or relating to any entry onto on the Real Property by Buyer, its agents, employeesemployees or contractors in the course of performing the inspections, contractors and/or subcontractorstestings or inquiries provided for in this Agreement, pursuant including, without limitation, any release of Hazardous Materials or any damage to this Section 4.1(c) hereofthe Property caused by Buyer or Buyer’s agents, provided, however, Buyer shall not be obligated except with respect to indemnify, defend any pre-existing conditions or hold harmless to the extent caused by Seller or any Seller Group Indemnitee for Seller-related party, including any such claimsof its employees, demands and/or causes of action agents, contractors, occupants or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto the Real Property, or the accidental or inadvertent release of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent or willful misconduct of Seller or any Seller Group Indemniteeinvitees. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c) foregoing indemnity shall survive beyond the Closing, or, if the sale is not consummated, beyond the termination of this Agreement and the Closing, as applicableAgreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (TILT Holdings Inc.)
Physical Inspection. Subject to the limitations set forth in this Section 4.1(c) and notwithstanding any provision to the contrary in this Agreement, commencing on the Effective Date and continuing through the Closing or any earlier termination of this Agreement4.1(d), Buyer shall have the right, at all times after the Effective Date, at Buyer’s 's expense, to continue to make inspections (including tests, surveys and other studies) of the Real Property and all matters relating thereto; provided, includinghowever, but not limited to, soils and geologic conditions, location of property lines, utility availability and use restrictions, environmental conditionsthat under no circumstance shall Buyer be afforded any additional rights under this Agreement, the manner Transaction Documents or quality otherwise as a result of such continuing investigation. In connection with the construction foregoing, subject to Buyer delivering to Seller a minimum of the Improvements, the habitability, merchantability, marketability, profitability one (1) Business Day's advance notice (which notice may be delivered telephonically or fitness for a particular purpose of the Real Property, the effect of applicable planning, zoning and subdivision statutes, ordinances, regulations, restrictions and permits, the character and amount of any fees or charges that must be paid by e-mail to further develop, improve and/or occupy the Real Property and all other matters relating to the Real Property. Prior to ClosingXxxxxxxx X. Xxxx), Buyer and its agents, contractors and subcontractors shall have the right to enter upon the Real Property, at reasonable times during ordinary business hours, hours to make inspections and tests as Buyer deems reasonably necessary and which may be accomplished without causing any material damage to the Real Property Property, including, without limitation, inspections of all roofs, electrical, mechanical and structural elements, HVAC systems and other building systems located on or within the right to conduct a phase I environmental audit Improvements, and an investigation with respect to the Real Property’s compliance conducting interviews with the requirements of Title III Tenants. Buyer shall contact Xxxxxxxx X. Xxxx at (000) 000-0000, in advance to schedule all such on-site inspections. Buyer shall observe all appropriate safety precautions in conducting any such inspections of the Americans with Disabilities Act of 1990Property. Notwithstanding the foregoing, in no event shall Buyer, its agents, contractors or subcontractors conduct any environmental or physically invasive testing on the Real Property without Seller’s 's prior written approval, which approval may be granted or withheld in the sole and absolute discretion of Seller. Buyer agrees that its inspection rights hereunder shall not be unreasonably withheld, conditioned or delayed. subject to the rights of tenants occupying the Property and the rights held under easements and other documents recorded against the Property and that Buyer shall not materially unreasonably interfere with or interrupt any Tenant, occupant or invitee of the Real Property in making such inspections or tests. Prior to such entry upon the Real Property, Buyer shall deliver to Seller a certificate of insurance evidencing that Buyer, and its agents, contractors and subcontractors, have procured commercial general liability insurance coverage for bodily injury and property damage in an amount of at least One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in excess umbrella liability insurance coverage, naming Seller as an additional insured under such insurance, all of which shall return be in form and restore the Property substance reasonably satisfactory to substantially its original condition prior to such inspections or testsSeller. Buyer shall not permit any liens or encumbrances to be placed against the Real Property in connection with Buyer’s 's investigation and inspection of the Real Property and/or in connection with Buyer’s 's activities on the Real Property, but in the event any such lien is placed against the Real Property, Buyer shall pay and discharge such lien within ten (10) Business Days after Buyer becomes aware of the attachment of such lien. Buyer hereby agrees to and shall indemnify, defend and hold harmless Seller and Seller’s 's members, managers, partners, officers, directors, shareholders, employees, agents, representatives, invitees, Tenants, occupants, successors and assigns (eachcollectively, a “Seller Group IndemniteeSeller's Representatives”), from and against any and all claims, demands, and causes of action for personal injury or property damage, and all damages, judgments, liabilities, costs, fees and expenses (including reasonable attorneys’ fees) resulting therefrom, Losses arising out of any entry onto Buyer's investigation and inspection of the Real Property by and/or Buyer, 's and its contractors' and agents, employees, contractors ' activities on or about the Real Property conducted prior to and/or subcontractors, pursuant after the Effective Date and/or any damage to this Section 4.1(cthe Real Property or personal injury resulting from any of the activities which Buyer conducts (or has conducted) hereof, provided, however, Buyer shall not be obligated to indemnify, defend on or hold harmless Seller or any Seller Group Indemnitee for any such claims, demands and/or causes of action or any such damages, judgments, liabilities, costs, fees or expenses caused by: (i) the discovery of conditions that were present before Buyer or its representatives entered onto about the Real Property, or except to the accidental or inadvertent release extent such Losses arise out of any Hazardous Materials that were in, on or under the Real Property prior to such entry; or (ii) the negligent negligence or willful misconduct of Seller or Seller's Representatives or the mere discovery by Buyer of any pre-existing condition on the Property, except to the extent the negligence or willful misconduct of Buyer or its representatives released or exacerbated such pre-existing condition on the Property prior to such investigations. Buyer further hereby covenants and agrees to promptly repair any such damage to the Property caused by reason of Buyer's investigation or inspection of the Real Property and/or Buyer's activities on or about the Real Property; provided, however, that the scope and manner of such repair shall be subject to Seller's prior reasonable approval. Furthermore, Buyer shall not contact or have any discussions with any Tenants without: (i) first giving Seller Group Indemniteeprior notice (which notice may be delivered telephonically or by e-mail to Xxxxxxxx X. Xxxx); and (ii) giving Seller a reasonable opportunity to be present, in person or by telephone, during such discussions. Except in connection with the preparation of a so-called “Phase I” environmental report or a so-called “zoning report” with respect to the Property, Buyer will also not contact the city, county or any other governmental agencies without first giving Seller reasonable prior notice (which notice may be delivered telephonically or by e-mail to Xxxxxxxx X. Xxxx) and a reasonable opportunity to be present during or participate in such discussions. Buyer shall contact Xxxxxxxx X. Xxxx at (000) 000-0000, to schedule all such meetings and discussions. Buyer acknowledges and agrees that it is being afforded an adequate opportunity to conduct a comprehensive investigation and review of the Property. The covenants, agreements and obligations of Buyer set forth in this Section 4.1(c4.1(d) shall survive the termination of this Agreement and the Closing, as applicable.
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Samples: Purchase and Sale Agreement (Pacific Office Properties Trust, Inc.)
