RIGHT, UPON
REASONABLE ADVANCE NOTICE TO SELLER, TO ASSIGN THIS AGREEMENT OR ITS RIGHTS
HEREUNDER TO ANY ENTITY THAT CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON
CONTROL, DIRECTLY OR INDIRECTLY WITH BUYER OR BUYER'S MANAGER, IN EACH CASE
WITHOUT THE SELLER'S CONSENT; PROVIDED, HOWEVER, THAT NO ASSIGNMENT BY BUYER
SHALL BE EFFECTIVE, HOWEVER, UNLESS AND UNTIL BUYER SHALL HAVE FURNISHED TO
SELLER BOTH A FULLY EXECUTED COPY OF THE ASSIGNMENT AND ASSUMPTION AGREEMENT, IN
FORM REASONABLY SATISFACTORY TO SELLER, BY THE ASSIGNEE TO ASSUME, PERFORM AND
BE RESPONSIBLE, JOINTLY AND SEVERALLY WITH THE BUYER NAMED HEREIN, FOR THE
PERFORMANCE OF ALL OF THE OBLIGATIONS OF BUYER UNDER THIS AGREEMENT AND TO PAY
ALL ADDITIONAL TRANSFER OR DOCUMENTARY TAXES IMPOSED AS A RESULT OF SUCH
ASSIGNMENT, AND WHICH CONTAINS A REPRESENTATION BY THE ASSIGNEE THAT ALL OF THE
REPRESENTATIONS AND WARRANTIES MADE BY BUYER IN THIS AGREEMENT ARE TRUE AND
CORRECT WITH RESPECT TO THE ASSIGNEE AS OF THE DATE OF THE ASSUMPTION AGREEMENT,
TOGETHER WITH ADDITIONAL AUTHORITY, DUE FORMATION, DUE EXECUTION AND DELIVERY
REPRESENTATIONS AS REASONABLY DETERMINED BY SELLER.
IN NO EVENT SHALL BUYER BE
RELIEVED OF ANY LIABILITY HEREUNDER BY REASON OF AN ASSIGNMENT OF ITS RIGHTS
HEREUNDER AND THE EXPRESS TERMS OF ANY ASSIGNMENT BY BUYER SHALL REAFFIRM
BUYER'S OBLIGATIONS HEREUNDER; PROVIDED, HOWEVER, THAT IF THE CLOSING OCCURS IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, THEN SO LONG AS BUYER'S
ASSIGNEE HAS FULLY ASSUMED ALL PAST, PRESENT AND FUTURE OBLIGATIONS OF BUYER
HEREUNDER, BUYER SHALL BE RELEASED FROM FURTHER LIABILITY HEREUNDER EFFECTIVE
UPON THE CLOSING.
18
(B)
PROHIBITED ASSIGNMENTS.
NOTWITHSTANDING THE FOREGOING PROVISIONS OF
SUBPARAGRAPH (A), BUYER SHALL HAVE NO RIGHT, UNDER ANY CIRCUMSTANCES, TO ASSIGN
THIS AGREEMENT (I) TO ANY ENTITY OWNED OR CONTROLLED BY AN EMPLOYEE BENEFIT PLAN
IF SELLER'S SALE OF THE PREMISES TO SUCH ENTITY WOULD, IN THE REASONABLE
JUDGMENT OF SELLER OR SELLER'S COUNSEL, EITHER CREATE, OTHERWISE CAUSE, OR RAISE
A MATERIAL QUESTION AS TO WHETHER IT WOULD CREATE OR OTHERWISE CAUSE, A
"PROHIBITED TRANSACTION" UNDER ERISA OR (II) TO ANY PERSON, OR TO ANY ENTITY
WHICH HAS AS A DIRECT OR INDIRECT OWNER OR PARTIAL OWNER A PERSON WITH A
CRIMINAL RECORD, OR CURRENTLY UNDER A CRIMINAL INDICTMENT.
(C)
SUCCESSORS AND ASSIGNS.
SUBJECT TO THE FOREGOING LIMITATIONS, THIS
AGREEMENT SHALL EXTEND TO, AND SHALL BIND, THE RESPECTIVE HEIRS, EXECUTORS,
PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF SELLER AND BUYER.
19.
INSPECTIONS/INSPECTION PERIOD.
(A)
RIGHT TO INSPECT.
BUYER, AND BUYER'S AGENTS AND REPRESENTATIVES, SHALL
HAVE THE RIGHT, FROM TIME TO TIME, PRIOR TO THE EXPIRATION OF THE INSPECTION
PERIOD OR EARLIER TERMINATION OF THIS AGREEMENT, DURING NORMAL BUSINESS HOURS,
TO ENTER UPON THE PREMISES FOR THE PURPOSE OF CONDUCTING VISUAL INSPECTIONS OF
THE PREMISES, EXAMINING THE STRUCTURE OF THE BUILDING, TESTING OF MACHINERY AND
EQUIPMENT, TAKING OF MEASUREMENTS, MAKING OF SURVEYS AND GENERALLY FOR THE
REASONABLE ASCERTAINMENT OF MATTERS RELATING TO THE PREMISES.
IN CONNECTION
WITH BUYER'S INSPECTION, BUYER SHALL (I) GIVE SELLER PRIOR WRITTEN NOTICE OF THE
TIME AND PLACE