TO DELIVER THE TERMINATION NOTICE WITHIN
THE DUE DILIGENCE PERIOD, OR BUYER'S FAILURE TO DELIVER WRITTEN NOTICE OF
APPROVAL OF THE PROPERTY ("NOTICE OF APPROVAL") IN BUYER'S SOLE AND ABSOLUTE
DISCRETION ON OR BEFORE THE EXPIRATION OF THE DUE DILIGENCE PERIOD, SHALL
CONCLUSIVELY BE CONSIDERED BUYER'S DISAPPROVAL OF ALL THE CONDITIONS AND
DOCUMENTS IN SECTION 5.1 AND THIS SECTION 5.2. IF BUYER HAS GIVEN SELLER THE
TERMINATION NOTICE IN ACCORDANCE WITH THIS SECTION 5.2., OR IF BUYER HAS FAILED
TO DELIVER ITS NOTICE OF APPROVAL ON OR PRIOR THE EXPIRATION OF THE DUE
DILIGENCE PERIOD, THIS AGREEMENT SHALL BE DEEMED CANCELED AND BUYER SHALL BE
ENTITLED TO THE RETURN OF ITS DEPOSIT (AND THE INTEREST ACCRUED THEREON).
5.2.2
DURING THE DUE DILIGENCE PERIOD, BUYER AND BUYER'S
AGENTS SHALL BE GRANTED A RIGHT OF ENTRY ON THE PROPERTY (A) TO PERFORM SUCH NON
INVASIVE ENGINEERING, ENVIRONMENTAL AND GEOLOGICAL REVIEWS AS BUYER SHALL DEEM
APPROPRIATE, (B) EXAMINE ALL STRUCTURAL AND MECHANICAL SYSTEMS WITHIN THE
IMPROVEMENTS, (C) EXAMINE THE BOOKS AND RECORDS OF SELLER RELATING TO THE
OPERATION OF THE PROPERTY, AND (D) CONDUCT SUCH OTHER NON INVASIVE PHYSICAL
INSPECTIONS AND MAKE SUCH OTHER REPORTS AS BUYER SHALL DEEM APPROPRIATE FOR ANY
PURPOSE RELATED TO BUYER'S PROPOSED OWNERSHIP, USE OR DEVELOPMENT OF THE
PROPERTY. BUYER'S RIGHT OF ENTRY UPON THE PROPERTY SHALL BE SUBJECT TO, AND
BUYER AGREES TO PERFORM, EACH OF THE FOLLOWING CONDITIONS AND COVENANTS, ALL OF
WHICH SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND THE
DELIVERY OF THE DEED (AS DEFINED IN SECTION 7.2.1 BELOW):
(A)
BUYER SHALL PAY ALL COSTS, EXPENSES,
LIABILITIES, AND CHARGES INCURRED BY BUYER RELATED TO BUYER'S ENTRY;
7
(B)
BUYER, AT BUYER'S SOLE COST, SHALL REPAIR
ALL DAMAGE OR INJURY CAUSED BY BUYER OR BUYER'S AGENTS IN CONNECTION WITH ANY
SUCH INSPECTION OR ENTRY AND SHALL RETURN THE PROPERTY TO THE CONDITION EXISTING
PRIOR TO SUCH ENTRY;
(C)
ANY ENTRY UPON THE PROPERTY SHALL BE UPON
REASONABLE NOTICE TO SELLER, SHALL BE AT REASONABLE TIMES AND SHALL NOT
UNREASONABLY INTERFERE WITH THE SELLER'S OPERATIONS ON THE PROPERTY. SELLER, AT
ITS SOLE EXPENSE, SHALL HAVE THE RIGHT TO ACCOMPANY BUYER AND BUYER'S AGENTS
DURING ANY ENTRY UPON THE PROPERTY AND TO REQUIRE THAT BUYER AND BUYER'S AGENTS
COMPLY WITH SELLER'S SAFETY AND SECURITY PROCEDURES DISCLOSED TO BUYER PRIOR TO
SUCH ENTRY;
(D)
BUYER SHALL KEEP THE PROPERTY FREE AND
CLEAR OF ALL LIENS ARISING OUT OF THE ACTIVITIES OF BUYER OR BUYER'S AGENTS
CONDUCTED UPON THE PROPERTY; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT APPLY TO
ANY LIEN ARISING FROM OR RELATED TO ANY PRE-EXISTING HAZARDOUS SUBSTANCES
LOCATED ON, IN OR UNDER THE PROPERTY, SUBJECT TO THE PROVISIONS OF
SECTION 5.2.2(H) BELOW;
(E)
BUYER SHALL INDEMNIFY AND HOLD SELLER
HARMLESS FROM ANY LIEN, LOSS, CLAIM, LIABILITY, OR EXPENSE, INCLUDING ATTORNEYS'
FEES AND COSTS, ARISING OUT OF OR IN CONNECTION WITH THE ACTIVITIES OF BUYER OR
BUYER'S AGENTS ON OR ABOUT THE PROPERTY; PROVIDED, HOWEVER, SUBJECT TO
SECTION 5.2.2(H) BELOW, THE FOREGOING INDEMNITY AND