SELLER AND/OR
SELLER-RELATED PARTIES CAUSED BY THE ACTS OF PURCHASER, ITS AGENTS, EMPLOYEE AND
REPRESENTATIVES, IN CONNECTION WITH ANY OF THE INVESTIGATIONS;
(C)
PROMPTLY REPAIR ANY DAMAGE TO THE PROPERTY RESULTING FROM ANY OF
THE INVESTIGATIONS;
3
(D)
AVOID DISRUPTION OF OR INTERFERENCE IN ANY WAY WITH THE RESTAURANT
AND RELATED BUSINESSES OPERATED ON THE PROPERTY DURING THE COURSE OF ANY
INVESTIGATIONS;
(E)
NOT PERMIT ANY INSPECTIONS, INVESTIGATIONS OR OTHER DUE DILIGENCE
ACTIVITIES TO RESULT IN ANY LIENS, JUDGMENTS OR OTHER ENCUMBRANCES BEING FILED
AGAINST THE PROPERTY AND SHALL, AT ITS SOLE COST AND EXPENSE, PROMPTLY DISCHARGE
OF RECORD ANY SUCH LIENS OR ENCUMBRANCES THAT ARE SO FILED OR RECORDED;
(F)
NOT PERMIT ANY BORINGS, DRILLINGS OR ENVIRONMENTAL SAMPLINGS TO
BE DONE AT OR WITH RESPECT TO THE PROPERTY;
(G)
MAINTAIN A POLICY OF COMPREHENSIVE GENERAL PUBLIC LIABILITY
INSURANCE, WITH A BROAD FORM CONTRACTUAL LIABILITY ENDORSEMENT COVERING
PURCHASER'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
CERTIFICATES
EVIDENCING REQUIRED INSURANCE COVERAGE SHALL BE FURNISHED TO SELLER, FOR ITS
REVIEW AND APPROVAL, PRIOR TO THE FIRST ENTRY ON THE PROPERTY BY PURCHASER; AND
(H)
BE SOLELY RESPONSIBLE FOR THE PAYMENT OF ALL COSTS INCURRED BY
PURCHASER IN CONNECTION WITH THE INVESTIGATIONS.
Notwithstanding the provisions of subparagraph (f) above, Purchaser shall be
permitted to cause a phase II environmental audit of the Property to be
conducted if and to the extent the same is expressly recommended by a phase I
audit conducted on behalf of Purchaser, provided that such phase II audit shall
be conducted by a reputable environmental engineering company reasonably
acceptable to Seller.
The provisions of subparagraphs (b), (c) and (h) above
shall survive the Closing or the sooner termination of this Agreement.
5.
APPORTIONMENTS.
(A)
GENERAL.
FOR PURPOSES OF THIS SECTION 5, THE "PRORATION DATE"
SHALL BE 11:59 P.M. ON THE DAY PRECEDING THE CLOSING SO THAT PURCHASER SHALL BE
DEEMED TO BE (I) THE LESSEE UNDER THE EXISTING LEASE, AS BETWEEN SELLER AND
PURCHASER, AND (II) BE THE OWNER OF THE PROPERTY, AS BETWEEN LESSOR AND
PURCHASER, AND THEREFORE ENTITLED TO ANY REVENUES AND RESPONSIBLE FOR ANY
EXPENSES FOR THE ENTIRE DAY UPON WHICH THE CLOSING OCCURS.
PURCHASER AND SELLER
SHALL PREPARE A SCHEDULE OF ADJUSTMENTS ("SCHEDULE OF ADJUSTMENTS") PRIOR TO THE
ESCROW CLOSING (AS HEREINAFTER DEFINED), BASED ON A CLOSING DATE TWO (2) DAYS
FOLLOWING.
SUCH ADJUSTMENTS, IF AND TO THE EXTENT KNOWN AND AGREED UPON AS OF
THE CLOSING, SHALL BE PAID BY PURCHASER TO SELLER (IF THE PRORATIONS RESULT IN A
NET CREDIT TO SELLER) OR BY SELLER TO PURCHASER (IF THE PRORATIONS RESULT IN A
NET CREDIT TO PURCHASER), BY INCREASING OR REDUCING THE AMOUNT OF CASH TO BE
PAID BY PURCHASER AT THE CLOSING.
ANY SUCH ADJUSTMENTS NOT DETERMINED OR NOT
AGREED UPON AS OF THE CLOSING SHALL BE ALLOCATED ON A FAIR AND EQUITABLE BASIS
AS SOON AS INVOICES OR BILLS ARE AVAILABLE, WITH FINAL ADJUSTMENTS TO BE MADE AS
SOON AS REASONABLY POSSIBLE AFTER THE CLOSING.
ANY APPORTIONMENT OR PRORATION
ERRORS MADE AT