Access and Due Diligence Agreement
Basic Information
Date:
Seller:
Seller’s Mailing Address:
Buyer:
Buyer’s Mailing Address:
Property:
A. Recitals
A.1.Seller is the owner of the Property.
A.2.Buyer is considering buying the Property from Seller, and Buyer and Seller are currently negotiating the terms of a possible purchase (“Possible Transaction”).
A.3.In connection with the Possible Transaction, Buyer wants a license to enter the Property to examine, inspect, and perform tests on the Property to evaluate the physical and environmental condition of the Property and to perform other tests and inspections related to the Possible Transaction. Seller has agreed to grant Buyer the license to enter the Property for that purpose in accordance with the terms and conditions of this Agreement.
B. Agreement
For valuable consideration, the receipt and sufficiency of which is acknowledged, Buyer and Seller agree as follows:
B.1.Investigation Period. The “Investigation Period” means the period from the date of this Agreement until the earliest of (a) 5:00 p.m. local time where the Property is located on [date]; (b) receipt by Buyer of written notice from Seller terminating this Agreement, which termination may be made at Seller’s sole discretion; or (c) the execution and delivery by Seller and Buyer of a purchase and sale agreement (“Sales Contract”) for the Property.
B.2.Entry onto the Property. Buyer may enter the Property during the Investigation Period to inspect it at Buyer’s cost and risk, subject to the following:
B.2.a.Buyer must deliver evidence to Seller that Buyer has liability insurance for its proposed inspection activities, with coverages and in amounts that are substantially the same as those maintained by Seller or with such lesser coverages and in such lesser amounts as are reasonably satisfactory to Seller.
B.2.b.Buyer may not interfere in any material manner with existing operations or occupants of the Property.
B.2.c.Buyer must notify Seller in advance of Buyer’s plans to conduct tests so that Seller may be present during the tests.
B.2.d.If the Property is physically altered because of Buyer’s inspections, Buyer must return the Property to its preinspection condition promptly after the alteration occurs.
B.2.e.Buyer must deliver to Seller copies of all inspection reports that Buyer prepares or receives from third-party consultants or contractors within three days after their preparation or receipt.
B.2.f.Buyer must abide by any other reasonable entry rules imposed by Seller.
B.3.Environmental Assessment. Buyer has the right to conduct environmental assessments of the Property. Seller will provide, or will designate a person with knowledge of the use and condition of the Property to provide, information requested by Buyer or Buyer’s agent or representative regarding the use and condition of the Property during the period of Seller’s ownership of the Property. Seller will cooperate with Buyer in obtaining and providing to Buyer or its agent or representative information regarding the Property.
B.4.Property Documents. Seller has previously made, or will make, available to Buyer and Buyer’s representatives for their review, certain items and information pertaining to the Property with the exception of any financially privileged documents pertaining to Seller (collectively referred to as the “Property Documents”). The Property Documents have been or will be made available to Buyer without representation or warranty by, or recourse against, Seller. Buyer will not rely on the Property Documents and will independently verify the truth, accuracy, and completeness of any information or items contained therein.
B.5.Buyer’s Indemnity and Release of Seller. Buyer will indemnify, defend, and hold Seller harmless from any loss, attorney’s fees, expenses, or claims arising out of Buyer’s investigation of the Property, except those arising out of the acts or omissions of Seller and those for repair or remediation of existing conditions discovered by Buyer’s inspection. The obligations of Buyer under this provision will survive termination of this Agreement, the execution or termination of the Sales Contract, and closing. Buyer releases Seller and those persons acting on Seller’s behalf from all claims and causes of action (including claims for attorney’s fees and court and other costs) resulting from Buyer’s investigation of the Property.
B.6.No Waiver. No waiver of default by any party to this Agreement may be implied from failure to take action by any other party to the Agreement, regardless of whether the default continues or is repeated. No express waiver of a default will affect any other default or cover any other period not specified in the express waiver. A waiver of any default in the performance of any provision contained in this Agreement will not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other provision contained in this Agreement.
B.7.Assignment. The license granted to Buyer under the terms of this Agreement is personal to Buyer, and neither this Agreement nor the license may be transferred or assigned by Buyer.
B.8.Notices. Any notice required by or permitted under this Agreement must be in writing. Any notice required by this Agreement will be deemed to be given (whether received or not) the earlier of receipt or three business days after being deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this Agreement. Notice may also be given by regular mail, personal delivery, courier delivery, or e-mail and will be effective when received, provided that (a) any notice received on a Saturday, Sunday, or holiday will be deemed to have been received on the next day that is not a Saturday, Sunday, or holiday and (b) any notice received after 5:00 p.m. local time at the place of delivery on a day that is not a Saturday, Sunday, or holiday will be deemed to have been received on the next day that is not a Saturday, Sunday, or holiday. Any address for notice may be changed by not less than ten days’ prior written notice given as provided herein. Copies of each notice must be given by one of these methods to the attorney of the party to whom notice is given.
B.9.Amendment. This Agreement may be amended only by an instrument in writing signed by the parties.
B.10.Revocation. The license granted under this Agreement is revocable by Seller, at any time, for any reason or no reason, on receipt by Buyer from Seller of written notice of revocation.
B.11.Business Days; Holidays; Weekends. As used in this Agreement, the term business day means any day, other than a Saturday or Sunday, on which banks located in [city, state] are not required or authorized to close. If any notice or action required or permitted by this Agreement falls on a date that is not a business day, the date will be extended to the next business day.
B.12.Entire Agreement. This Agreement is the entire agreement between Seller and Buyer concerning Buyer’s investigations, and no modification or subsequent agreement relative to the subject matter of this Agreement will be binding on either party unless reduced to writing and signed by the party to be bound.
B.13.No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
B.14.Severability. If a provision in this Agreement is unenforceable for any reason, to the extent the unenforceability does not destroy the basis of the bargain among the parties, the unenforceability does not affect any other provision of this Agreement, and this Agreement is to be construed as if the unenforceable provision is not a part of the Agreement.
B.15.Ambiguities Not to Be Construed against Party Who Drafted Agreement. The rule of construction that ambiguities in a document are construed against the party who drafted it does not apply in interpreting this Agreement.
B.16.No Special Relationship. The parties’ relationship is an ordinary commercial relationship, and the parties do not intend to create the relationship of principal and agent, partners, joint venturers, or any other special relationship.
B.17.Counterparts. If this Agreement is executed in multiple counterparts, all counterparts taken together constitute this Agreement. Copies of signatures to this Agreement are effective as original signatures.
B.18.Confidentiality. This Agreement, this transaction, and all information learned in the course of this transaction will be kept confidential, except to the extent disclosure is required by law or court order or to enable third parties to advise or assist Buyer to investigate the Property or either party to close this transaction. Remedies for violations of this provision are limited to injunctions, and no damages or rescission may be sought or recovered as a result of any such violations.
B.19.Binding Effect. This Agreement binds, benefits, and may be enforced by the parties and their respective heirs, successors, and permitted assigns.
B.20.Time. Time is of the essence with respect to this Agreement.
B.21.Governing Law. This Agreement is to be construed and enforced in accordance with the laws of the state in which the Property is located.
B.22.No Obligation Regarding Possible Transaction. Notwithstanding the rights granted to Buyer under this Agreement, and notwithstanding any negotiations or other communications between Seller and Buyer, neither Seller nor Buyer has any obligation whatsoever to proceed with the Possible Transaction or otherwise enter into a Sales Contract or any other agreement concerning Seller’s sale or Buyer’s purchase of the Property or any portion thereof, or to otherwise negotiate for or consummate any transaction of any kind concerning the Property or any portion thereof. Neither Seller nor Buyer has any obligations whatsoever regarding the purchase and sale of the Property unless and until Seller and Buyer execute and enter into a binding Sales Contract, which either party may or may not do in its sole discretion.
Seller:
[Name of seller]
By:
Name:
Title:
Buyer:
[Name of buyer]
By:
Name:
Title: