Common use of Due Diligence Clause in Contracts

Due Diligence. (a) Seller covenants and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 4 contracts

Samples: Agreement and Plan of Merger (Indigo-Energy, Inc.), Agreement and Plan of Merger (Focus Universal Inc.), Agreement and Plan of Merger (Focus Universal Inc.)

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Due Diligence. (a) Seller covenants and agrees to all Buyer shall have, through the last day of the terms and provisions set forth in this Section 5.2(a). Between due diligence period, which shall be thirty (30) days from the Commencement Date, or five (5) days from the date Buyer receives an appraisal of this Agreement the Premises and Phase I environmental report, whichever is later (but in no event later than forty-five (45) days from the Effective TimeCommencement Date), in addition which to examine, inspect and investigate the Premises and, in Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its 's sole and absolute discretion deems necessary or appropriatejudgment and discretion, including a due diligence review of to determine whether the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or Premises is acceptable to Buyer and to obtain all necessary internal approvals, (the "Due Diligence Period"). In the event the Buyer determines in its reasonable discretion that a Phase II environmental report is necessary to permit Buyer to complete Buyer's due diligence, the Due Diligence Period shall be extended for any reason whatsoevera reasonable period of time, as determined not to exceed thirty (30) days, from the date the Buyer receives the Phase I environmental report. If Buyer, by Buyer written notice to Seller, waives its right to terminate this Agreement pursuant to this Paragraph prior to the last day of the Due Diligence Period, then the Due Diligence Period shall be deemed to have ended on the date such notice is received by Seller. Notwithstanding anything to the contrary in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement by giving notice of termination to Seller (the, "Due Diligence Termination Notice") on or before the last day of the Due Diligence Period. If Buyer does not give the Due Diligence Termination Notice, this Agreement shall continue in full force and effect. If this Agreement terminates pursuant to this Paragraph, the First Deposit, other than the $5,000.00 identified as non-refundable, shall be refunded to Buyer immediately, and all further rights and obligations of the parties under this Agreement shall terminate. If this Agreement is not terminated pursuant to this Paragraph, Buyer shall have the obligation to immediately place in escrow the Second Deposit and the Deposit (i.e, First Deposit and Second Deposit) which shall then be deemed non-refundable absent Seller's breach. In the event that Buyer would not proceed with this Agreement, it shall furnish to Seller copies of all tests, surveys, reports and inspections obtained by Buyer without payment cost. Seller shall receive notice of the performance of any damages tests and inspections and have the right to be present. Buyer shall have reasonable access to the Premises for the purpose of conducting surveys, architectural, engineering, geotechnical and environmental inspections and tests (including intrusive inspection and sampling), and any other inspections, studies or penaltytests reasonably required by Buyer, but in a manner not disruptive of ongoing business. Seller shall cooperate with Buyer and enforce the provisions of existing tenants' leases, if necessary to facilitate Buyer's access and inspections. Buyer shall keep the Premises free and clear of any liens and will indemnify, defend and hold Seller harmless from all claims and liabilities asserted against Seller as a result of any such entry by Buyer, its agents, employees or representatives. If any inspection or tests disturbs the Premises, Buyer will restore the Premises to the same condition as existed prior to any such inspection or test. Buyer and its agents, employees and representatives shall have a continuing right of reasonable access to the Premises during the pendency of this Agreement for the purpose of examining and making copies of all books and records and other materials relating to the Premises in Seller's or its property manager's possession and Buyer shall have the right to conduct a "walk-through" of the Premises prior to Closing upon appropriate notice to tenants as permitted under the Leases. In the course of its investigations, Buyer may make inquiries to third parties, including, without limitation, tenants, lenders, contractors, property managers, parties to Service Contracts and municipal, local and other government officials and representatives, and Seller consents to such inquiries, provided same are performed in a professional manner and does not disrupt any ongoing business. The obligations of the Buyer under this Paragraph shall survive the termination of this Agreement.

Appears in 3 contracts

Samples: Agreement (Cedar Income Fund LTD /Md/), Agreement for the Sale (Cedar Income Fund LTD /Md/), Agreement (Cedar Income Fund LTD /Md/)

Due Diligence. (a) Seller covenants and agrees to all of acknowledges that Buyer has the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine perform continuing due diligence reviews with respect to the officesPurchased Assets, propertiesfor purposes of verifying compliance with the representations, equipmentwarranties and specifications made hereunder, invoicesor otherwise, customer and Seller agrees that upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreement books and records of Seller and of agreements, instruments or information relating to such Purchased Assets in the Seller Subsidiary, (b) meet and discuss possession or under the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review control of Seller, any other servicer or subservicer and/or the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller SubsidiaryCustodian. Seller shall promptly provide agrees to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to reimburse Buyer for any reason whatsoever, as determined and all reasonable out-of-pocket costs and expenses incurred by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other with respect to the Purchased Assets during the term or provision of this Agreement, which shall be paid by Seller to Buyer will have no duty within five (5) days after receipt of an invoice therefor. Seller also shall make available to Buyer a knowledgeable financial or obligation accounting officer for the purpose of any kind or nature whatsoever to proceed with or to consummate any answering questions respecting the Purchased Asset Files and the Purchased Assets. Without limiting the generality of the transactions contemplated foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by this AgreementSeller to Buyer and the representations, including warranties and covenants contained herein, and that Buyer, at its option, has the Mergerright at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Buyer may underwrite such Purchased Assets itself or engage a third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or to negotiate revised termsunder the control, provisions or conditions of Seller. Seller further agrees that Seller shall reimburse Buyer for any of the transactions contemplated and all attorneys’ fees, costs and expenses incurred by this Agreement, including the Merger, Buyer in connection with continuing due diligence on Eligible Assets and Buyer may terminate this Agreement without payment of any damages or penaltyPurchased Assets.

Appears in 3 contracts

Samples: Master Repurchase Agreement (Capital Trust Inc), Master Repurchase Agreement (Capital Trust Inc), Master Repurchase Agreement (Capital Trust Inc)

Due Diligence. (a) Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior written notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Loans in the possession or under the control of Seller, any other servicer or subservicer and/or the Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering financial or accounting questions respecting the Purchased Loan Files and the Purchased Loans. Seller acknowledges that Buyer has the right to request, at Seller’s expense, an Appraisal for any Mortgaged Property securing a Purchased Loan that shall have been subject to a Credit Event. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Loans. Buyer may underwrite such Purchased Loans itself or engage a third party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Buyer and provisions set forth any third party underwriter reasonably acceptable to Seller in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of financial models, agreements, instruments or information relating to such Purchased Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 3 contracts

Samples: Master Repurchase Agreement (Northstar Realty Finance Corp.), Master Repurchase Agreement (NorthStar Real Estate Income II, Inc.), Master Repurchase Agreement (NorthStar Real Estate Income Trust, Inc.)

Due Diligence. (a) Seller covenants acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of Seller, Primary Servicer and any other servicer or sub servicer and/or the Custodian. Seller agrees to reimburse Buyer for any and all reasonable out of pocket costs and expenses incurred by Buyer with respect to continuing due diligence on the Purchased Assets, which shall be paid by Seller to Buyer within thirty (30) calendar days after receipt of an invoice therefor. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Asset Files and the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Assets. Buyer may underwrite such Purchased Assets itself or engage a third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and provisions set forth any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Purchased Assets in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to reimburse Buyer for any reason whatsoeverand all attorneys’ fees, as determined costs and expenses incurred by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed connection with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, continuing due diligence on Eligible Assets and Buyer may terminate this Agreement without payment of any damages or penaltyPurchased Assets.

Appears in 3 contracts

Samples: Master Repurchase (Blackstone Mortgage Trust, Inc.), Master Repurchase (Blackstone Mortgage Trust, Inc.), Master Repurchase (Blackstone Mortgage Trust, Inc.)

Due Diligence. (a) Seller The Originator acknowledges that the Agent and the Lender Group may make Advances and may enter into transactions based solely upon the information provided by the Originator to the Agent and the Lender Group in the Note Receivables Schedules and the representations, warranties and covenants contained herein, and agrees that the Agent, at its option, has the right prior to any such Advance to conduct a partial or complete due diligence review on some or all of the terms Transferred Note Receivables securing such Advance, including, without limitation, re-generating the information used to originate each such Transferred Note Receivables. The Agent may underwrite such Transferred Note Receivables itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Originator agrees to cooperate with the Agent and provisions set forth any third party underwriter in this Section 5.2(a)connection with such underwriting, including, but not limited to, providing the Agent and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Transferred Notes Receivables in the possession, or under the control, of the Servicer. Between The Originator also shall make available to the date Agent and the Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Transferred Note Receivables and the related Note Receivable Documents. The Agent agrees (on behalf of itself and its Affiliates, directors, officers, employees and representatives) to use reasonable precaution to keep confidential, in accordance with its customary procedures for handling confidential information and in accordance with safe and sound practices, and not to disclose to any third party, any non-public information supplied to it or otherwise obtained by it hereunder with respect to the Originator or any of its Affiliates; provided, however, that nothing herein shall prohibit the disclosure of any such information to the extent required by statute, rule, regulation or judicial process; provided, further that, unless specifically prohibited by applicable law or court order, the Agent shall, prior to disclosure thereof, notify the Originator of any request for disclosure of any such non-public information. The Agent further agrees not to use any such non-public information for any purpose unrelated to this Agreement and that the Effective Time, in addition Agent shall not disclose such non public information to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right any third party underwriter without obtaining a written agreement from such third party underwriter to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, comply with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision confidentiality provisions of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 11.11.

Appears in 3 contracts

Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp), Sale and Servicing Agreement (Horizon Technology Finance Corp), Sale and Servicing Agreement (Horizon Technology Finance Corp)

Due Diligence. Each Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, Seller Parties, Settlement Agents, Approved Investors and other parties which may be involved in or related to Transactions (a) collectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Seller Parties agree that upon reasonable prior notice to the Seller Parties, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of any Seller Party. The Seller Parties will use best efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. The Seller Parties shall also make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the . Each Seller Subsidiary Party further agrees that it shall pay all out-of-pocket costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 16.

Appears in 3 contracts

Samples: Master Repurchase Agreement (loanDepot, Inc.), Master Repurchase Agreement (Home Point Capital Inc.), Master Repurchase Agreement (loanDepot, Inc.)

Due Diligence. (a) Seller covenants acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans and agrees Seller, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Purchased Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, to all review the servicing of the terms Purchased Mortgage Loans, or otherwise, and provisions set forth Seller agrees that upon reasonable prior written notice to a Responsible Officer of Seller, unless an Event of Default shall have occurred, in this Section 5.2(a)which case no notice is required, Buyer or its Authorized Representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian. Between Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the date purpose of this Agreement answering questions respecting the Mortgage Files and the Effective TimePurchased Mortgage Loans. Without limiting the generality of the foregoing, in addition Seller acknowledges that Buyer may purchase Purchased Mortgage Loans from Seller and enter into additional Transactions with respect to Buyer’s rights the Purchased Mortgage Loans based solely upon the information provided by Section 5.1(a)Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein and that Buyer, acting through Buyer’s own personnelat its option, legal counsel, accountants and other representatives and agents, shall have has the full right at any time to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such conduct a partial or complete due diligence review on a reasonable portion of the Purchased Mortgage Loans purchased in a Transaction, including, without limitation, ordering new credit reports and new appraisals on the related Mortgaged Properties with respect to the Mortgage Loans and otherwise re-generating the information used to originate such Mortgage Loan, which information may be used by Buyer to calculate Market Value. Buyer may underwrite such Purchased Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer or any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer with access to any documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretiondue diligence activities pursuant to this Section 20, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever in an amount not to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyexceed [***] per calendar year.

Appears in 2 contracts

Samples: Master Repurchase Agreement and Securities Contract (Home Point Capital Inc.), Master Repurchase Agreement and Securities Contract (Home Point Capital Inc.)

Due Diligence. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans, Seller, Guarantor and each Servicer, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Purchased Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, to review the servicing of the Purchased Mortgage Loans, or otherwise, and Seller agrees that (a) upon reasonable prior notice to Seller, unless an Event of Default shall have occurred and be continuing, in which case no notice is required, Buyer or its Authorized Representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer within three (3) Business Days of such request, an electronic copy via email to Xxxxxxx.Xxxxxxx@xxx.xxx, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Purchased Mortgage Loans. Seller shall also provide to Buyer all loan level due diligence conducted by a third-party on the Purchased Mortgage Loans. Such due diligence may be provided to Buyer after the Mortgage Loan is subject to a Transaction. Buyer will periodically review Seller’s loan level due diligence process and findings and may request additional loan level due diligence be conducted if deemed necessary in its reasonable discretion. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller and enter into additional Transactions with respect to the Purchased Mortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Mortgage Loans purchased in a Transaction, including, without limitation, ordering new credit reports and provisions set forth new appraisals on the related Mortgaged Properties with respect to the Purchased Mortgage Loans and otherwise re-generating the information used to originate such Purchased Mortgage Loan, which information may be used by Buyer to calculate Market Value. Buyer may underwrite such Purchased Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Xxxxxx agrees to cooperate with Buyer or any third party underwriter in this Section 5.2(a). Between the date of this Agreement and the Effective Timeconnection with such underwriting, in addition including, but not limited to, providing Buyer with access to Buyer’s rights provided by Section 5.1(a)any documents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in Buyerconnection with Xxxxx’s reasonable discretiondue diligence activities pursuant to this Section 20 in an amount not to exceed the Due Diligence Cap; provided, thenthat, notwithstanding any other term or provision the Due Diligence Cap shall not apply during the occurrence and continuance of this Agreement, Buyer will have no duty or obligation an Event of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyDefault.

Appears in 2 contracts

Samples: Master Repurchase Agreement and Securities Contract (Radian Group Inc), Master Repurchase Agreement and Securities Contract (Radian Group Inc)

Due Diligence. Seller shall, within seven (a7) Seller covenants business days after the Effective Date, make available to Buyer true and agrees to all correct copies of the terms documents, reports and provisions other materials and information pertaining to the Assets, which are in Seller’s possession or control and set forth in this Section 5.2(aon the attached Exhibit I (the “Seller Materials”). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s agents, consultants, contractors, engineers and other representatives shall thereafter have the right for fifteen (15) days after receipt of the Seller Materials (the “Due Diligence Period”) to review the Seller Materials and agents to satisfy itself as to the feasibility and acceptability of the Assets for the Buyer’s intended use and to enter onto each of the Properties to inspect and test the Properties and the other Assets including all buildings, improvements and equipment located thereon. In addition, the Seller shall permit Buyer and its authorized representatives reasonable access, upon forty-eight hours advance notice, to all of Seller’s premises, books, records, financial records and key personnel relative to the Retail Business and the Assets and shall cause its key personnel to furnish Buyer with such financial, operating and other information regarding the Seller’s Retail Business, Assets, contracts, liabilities, employees and properties as Buyer may reasonably request. Buyer’s analysis, inspection and testing may include, but shall not be permitted limited to: soil analysis and borings, utility location availability, environmental testing and studies (including but not limited to meet with representatives Phase I and employees of Phase II environmental site assessments), perc testing, geological testing, financial analysis, analysis for SEC (as hereinafter defined) compliance and any and all other tests, studies or analysis, which Buyer, in its sole discretion, deems appropriate (collectively, the “Property and Retail Business Studies and Analysis”). Buyer shall indemnify, hold harmless and defend Seller individually from and against all property damage, suits, actions, expenses, judgments, other damages and claims (including attorney and expert fees) resulting from Buyer’s Property and Retail Business Studies and Analysis. In the event Buyer makes borings or causes any physical change to the Properties as a groupresult of the Property and Retail Business Studies and Analysis, Buyer shall return the Properties to their condition prior to the Property and Retail Business Studies and Analysis. The due diligence review by In the event that the Buyer will be at determines that the results of any analysis, inspection or testing of the Seller Materials and/or Assets or the Property and Retail Business Studies and Analysis are unacceptable (the “Inspection Defects”), in Buyer’s sole expensediscretion, except that Seller shall make Seller’s and Buyer may, by written notice delivered to the Seller Subsidiaryprior to the expiration of the Due Diligence Period, either (i) terminate this Agreement; or (ii) waive as a condition to Buyer’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without chargeobligations hereunder all Inspection Defects. If In the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined event that this Agreement is terminated by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of pursuant to this AgreementSection 6, Buyer will have deliver a copy of the Property and Retail Business Studies and Analysis and return all Seller Materials to Seller and there shall be no duty further liability or obligation of any kind or nature whatsoever to proceed with or to consummate on any of the transactions contemplated by parties hereto and this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any Agreement shall become null and void. The obligations of the transactions contemplated by this Agreement, including the Merger, Seller and Buyer may terminate under this Agreement without payment of any damages or penaltySection 6 shall survive Closing.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Lehigh Gas Partners LP), Asset Purchase Agreement

Due Diligence. The Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and the Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Seller agrees that upon reasonable (abut no less than three (3) Business Day’s) prior notice unless an Event of Default shall have occurred or Buyer has a good faith belief that an Event of Default shall occur, in which case no notice is required, to the Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Seller and/or the Custodian. The Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, the Seller acknowledges that Buyer may purchase Mortgage Loans from the Seller based solely upon the information provided by the Seller to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Seller. The Seller Subsidiary, (b) meet and discuss further agrees that the Seller Business shall pay all reasonable out-of-pocket costs and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 26 (“Due Diligence Costs”).

Appears in 2 contracts

Samples: Master Repurchase Agreement (Homebanc Corp), Master Repurchase Agreement (Homebanc Corp)

Due Diligence. Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (ax) Seller covenants and its Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of its obligations under the Program Documents, and (y) the Servicing File and the Purchased Assets. Seller agrees promptly to provide Purchaser, Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to Purchaser and/or Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the date purpose of this Agreement answering questions respecting the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into Transactions with Seller based solely upon the information provided by Seller to Purchaser and/or Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that Purchaser and/or Agent, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such agrees to reimburse Purchaser and/or Agent for all reasonable out-of-pocket due diligence review of Seller, the Seller Subsidiary costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide expenses incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 36.

Appears in 2 contracts

Samples: Master Repurchase Agreement (Home Point Capital Inc.), Master Repurchase Agreement (Home Point Capital Inc.)

Due Diligence. Each Seller Party and Guarantor acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans and Contributed Assets and Seller Parties and Guarantor, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller Party and Guarantor agrees that (a) upon reasonable prior notice to Sellers and Guarantor unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans and Contributed Assets (the “Due Diligence Documents”) in the possession or under the control of Sellers and/or Guarantor and/or the Custodian, or (b) upon request, Sellers or Guarantor shall create and deliver to Buyer within five (5) Business Days of such request, an electronic copy on CD or DVD, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Sellers and Guarantor also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files, Purchased Mortgage Loans and Contributed Assets. Without limiting the generality of the foregoing, each Seller Party and Guarantor acknowledges that Buyer may purchase Mortgage Loans from Sellers and enter into Transactions with respect to REO Property based solely upon the information provided by Sellers or Guarantor to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Mortgage Loans and provisions set forth Contributed Assets purchased in this Section 5.2(a)a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re‑generating the information used to acquire such Purchased Mortgage Loans and Contributed Assets. Between the date of this Agreement Buyer may underwrite such Purchased Mortgage Loans and the Effective TimeContributed Assets itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller Party and Guarantor agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, in addition including, but not limited to, providing Buyer and any third party underwriter with access to Buyer’s rights provided by Section 5.1(a)any and all documents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books agreements, instruments or information relating to such Purchased Mortgage Loans and records of Seller and of Contributed Assets in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review Seller Party and/or Guarantor. Each Seller Party and Guarantor further agrees that Sellers or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined Guarantor shall pay all out‑of‑pocket costs and expenses incurred by Buyer in connection with Buyer’s reasonable discretionactivities pursuant to this Section 19, thensuch amount not to exceed the Due Diligence Cap per calendar year (“Due Diligence Costs”), notwithstanding any other term or provision unless an Event of this AgreementDefault shall have occurred and be continuing, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyin which case such limit shall not apply.

Appears in 2 contracts

Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust), Master Repurchase Agreement (PennyMac Mortgage Investment Trust)

Due Diligence. Buyer will have until the earlier of the Closing Date or expiration of the 20th day after delivery of the signed Agreement (a) Seller covenants the "Review Period"), to conduct all of its inspections and due diligence and satisfy itself regarding title to the Property, and to inspect the Property. Buyer agrees to all indemnify and hold harmless for any loss or damage to the Property or persons caused by Buyer or its agents arising out of such physical inspections of the terms Property. BUYER EXPRESSLY ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" BASIS, AND SUCH PROVISION SHALL SURVIVE CLOSING. Buyer may cancel this agreement for ANY REASON in its sole discretion by delivering a cancellation notice by certified mail, return receipt requested, or by personal delivery to Seller and provisions escrow holder before the expiration of the Review Period. If this Agreement is not canceled as set forth in herein, the First Payment shall be non-refundable unless Seller shall default hereunder. If Buyer cancels this Agreement as permitted under this Section 5.2(aor Section 16, except for any title insurance and/or escrow cancellation fees of the escrowee which will be paid by the Buyer, and any liabilities under sections 6, 15(a)(iii). Between the date , and 16(b) of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a(which will survive), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have Buyer (after execution of such documents reasonably requested by Seller to evidence the full right to (atermination hereof) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives returned its First Payment, and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have absolutely no duty rights, claims or obligation interest of any kind type in connection with the Property or nature whatsoever to proceed with this transaction, regardless of any alleged conduct by Seller or to consummate anyone else. Unless Seller shall be in default of any of the transactions contemplated by this Agreement, including the Mergerobligation hereunder, or this Agreement is canceled by Buyer pursuant to negotiate revised termsthe terms hereof, provisions or conditions for any of if Buyer fails to make the transactions contemplated by this AgreementSecond Payment, including Seller shall be entitled to retain the Merger, First Payment and Buyer may terminate irrevocably will be deemed to have canceled this Agreement without payment and relinquish all rights in and to the Property. If this Agreement is not canceled and the Second Payment is made when required, all of any damages or penaltyBuyer's conditions and contingencies will be deemed satisfied.

Appears in 2 contracts

Samples: Purchase Agreement (Aei Real Estate Fund Xv LTD Partnership), Purchase Agreement (Aei Real Estate Fund Xvi LTD Partnership)

Due Diligence. (a) Each Seller covenants acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller agrees that upon reasonable prior notice to such Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of such Seller, any other servicer or subservicer and/or the Custodian. Each Seller agrees to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to reimburse Buyer for any reason whatsoever, as determined and all reasonable out-of-pocket costs and expenses incurred by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other with respect to the Purchased Assets during the term or provision of this Agreement, which shall be paid by such Seller to Buyer will have no duty within five (5) days after receipt of an invoice therefor. Each Seller also shall make available to Buyer a knowledgeable financial or obligation accounting officer for the purpose of any kind or nature whatsoever to proceed with or to consummate any answering questions respecting the Purchased Asset Files and the Purchased Assets. Without limiting the generality of the transactions contemplated foregoing, each Seller acknowledges that Buyer may enter into Transactions with such Seller based solely upon the information provided by this Agreementsuch Seller to Buyer and the representations, including warranties and covenants contained herein, and that Buyer, at its option, has the Mergerright at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Buyer may underwrite such Purchased Assets itself or engage a third party underwriter to perform such underwriting. Each Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or to negotiate revised termsunder the control, provisions or conditions of such Seller. Each Seller further agrees that such Seller shall reimburse Buyer for any of the transactions contemplated and all reasonable attorneys’ fees, costs and expenses incurred by this Agreement, including the Merger, Buyer in connection with continuing due diligence on Eligible Assets and Buyer may terminate this Agreement without payment of any damages or penaltyPurchased Assets.

Appears in 2 contracts

Samples: Master Repurchase Agreement (Capital Trust Inc), Master Repurchase Agreement (Capital Trust Inc)

Due Diligence. Buyer has paid Seller the sum of $25.00, the receipt of which is hereby acknowledged by Seller, as option money for Buyer having the right to terminate this Agreement during the Due Diligence Period. Within ten (a10) days after the Effective Date, Seller covenants shall deliver to Buyer the Due Diligence Materials to the extent within Seller’s possession. Upon the completion of Seller’s delivery to Buyer of all such Due Diligence Materials, Buyer and agrees Seller shall agree in writing (which may be via e-mail) as to all such date of the terms and provisions set forth in this Section 5.2(a). Between completion of delivery, which shall be the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and commencement of the Seller SubsidiaryDue Diligence Period. Prior to Closing, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted have the right to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be enter upon Property at Buyer’s sole expense, except that and at reasonable times, to inspect, survey, examine, and test the Property as Buyer may deem necessary as part of Buyer’s acquisition of the Property. Seller shall make Seller’s allow Buyer and its representatives and agents access to, or shall provide documents for review, whichever the Seller Subsidiary’s employeescase may be, representatives, officers and accountants available with respect to Buyer without charge the Property at all reasonable times and shall provide copies cooperate with Buyer’s efforts to conduct the inspections permitted herein. Seller agrees to cooperate in introducing Buyer to vendors, staff and other parties who have experience with the Property’s ongoing operations. Buyer shall indemnify and hold Seller harmless from and against any and all claims, injuries and damages to persons and/or property arising out of documents or resulting from the exercise of Buyer’s inspection rights; provided, however, Buyer’s indemnity obligations shall not extend to any claims, injuries or damages resulting from or relating to (i) any action of Seller or its agents or representatives or (ii) any existing environmental contamination or other conditions with respect to the Property that may be discovered by Buyer without chargeas the result of its investigations. If During the results Due Diligence Period, Buyer may evaluate the Property, the feasibility of such due diligence review the transaction, the availability and cost of financing, and any other matters of concern to Buyer. Buyer shall have the right to terminate this Agreement by delivering notice to Seller at or meetings are not entirely satisfactory or acceptable to before 11:59 p.m. Eastern time on the last day of the Due Diligence Period, if Buyer determines, for any reason whatsoeveror no reason, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever that it is not desirable to proceed with the transaction. In such event, Holder shall promptly refund the Xxxxxxx Money to Buyer, and neither party shall have any further obligations or to consummate any of the transactions contemplated by liability under this Agreement except as expressly provided in this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Manufactured Housing Properties Inc.), Purchase and Sale Agreement (Manufactured Housing Properties Inc.)

Due Diligence. The Purchaser, Agent, Verification Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (ax) Seller covenants and Guarantor, including, without limitation, their respective financial condition and performance of its obligations under the Program Documents, and (y) the Servicing File and the Purchased Assets (including, but not limited to, any documentation related to Seller’s FHA servicing practices), and Seller agrees promptly to provide the Purchaser, Agent, Verification Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to the date Purchaser, Agent and/or Verification Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of this Agreement Seller for the purpose of answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that the Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to the Purchaser and/or Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that the Purchaser, acting through Buyer’s own personnelAgent and/or Verification Agent, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser, Agent and/or Verification Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller Subsidiaryagrees to reimburse the Purchaser, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such Agent and/or Verification Agent for all reasonable out-of-pocket due diligence review of Seller, the Seller Subsidiary costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide expenses incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 36.

Appears in 2 contracts

Samples: Master Repurchase Agreement (DITECH HOLDING Corp), Master Repurchase Agreement (Walter Investment Management Corp)

Due Diligence. Seller acknowledges that Xxxxx has the right to perform continuing due diligence reviews with respect to the Purchased Assets, Seller Parties, Servicer (ato the extent related to the services performed under the Servicing Agreement) and other parties which may be involved in or related to Transactions (collectively, “Third Party Transaction Parties”), as deemed appropriate by Buyer in its good faith discretion, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, and Xxxxxx agrees that upon reasonable prior notice to Seller Parties or Servicer, as applicable, unless an Event of Default shall have occurred and be continuing, in which case no notice is required, Buyer or its authorized representatives will be permitted at reasonable times to examine, inspect, and make copies and extracts of, the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of any Seller Party or Servicer; provided however, that unless an Event of Default has occurred and is continuing, Buyer shall not conduct more than one (1) such review during any one (1) year period; provided further that any such review shall be subject to the Asset Diligence Fee Cap. Seller will use commercially reasonable efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Seller shall cause Servicer to make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files and the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Assets from Seller based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to cause Servicer or its agent to conduct a partial or complete due diligence review on some or all of the terms Purchased Assets purchased in a Transaction, including, without limitation, ordering new Qualified Appraisals on the related Mortgaged Properties and provisions set forth in this Section 5.2(a). Between otherwise re-generating the date information used to originate such Purchased Asset and reviewing intercreditor agreements, property management agreements, formation documents of this Agreement the property owners and the Effective Timetheir direct and indirect owners, in addition to Buyerfinancial statements, environmental and engineering reports, underlying title policies including owner’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personneland UCC-9 title insurance policies, legal counsel, accountants opinions and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of documents as may be mutually agreed among Seller and Buyer. For the avoidance of the Seller Subsidiarydoubt, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform Servicer’s obligation to provide such due diligence review of Seller, the Seller Subsidiary and the Seller Business as to Buyer in its sole and absolute discretion deems necessary or appropriate, including a shall not preclude Buyer’s right to perform due diligence review on the Purchased Assets prior to the Purchase Date and as necessary during the term of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoeverAgreement, as determined by Buyer in is sole discretion, subject to the terms of the Commercial Mortgage Loan Documents. Buyer may underwrite such Purchased Assets itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller and Xxxxxxxx agree to cooperate with Xxxxx and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller Parties or Servicer. Seller further agrees that it shall pay, to the extent Seller has received an invoice therefor, all reasonable out-of-pocket costs and expenses incurred by Buyer or its affiliates and designees in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 21.

Appears in 2 contracts

Samples: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.), Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)

Due Diligence. Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (ax) Seller covenants and Guarantor, including, without limitation, their respective financial condition and performance of its obligations under the Program Documents, and (y) the Servicing File and the Purchased Assets. Seller agrees promptly to provide Purchaser, Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to Purchaser and/or Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the date purpose of this Agreement answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to Purchaser and/or Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that Purchaser and/or Agent, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such agrees to reimburse Purchaser and/or Agent for all reasonable out-of-pocket due diligence review of Seller, the Seller Subsidiary costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide expenses incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 36.

Appears in 2 contracts

Samples: Master Repurchase Agreement (Walter Investment Management Corp), Master Repurchase Agreement (Walter Investment Management Corp)

Due Diligence. Purchaser, Agent, Verification Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (ax) Seller covenants and Guarantor and their respective financial condition and performance of their obligations under the Program Documents, including the right to gain reasonable access to any significant officers (including the CEO, CFO, President, Treasurer and any other officers deemed by the Purchaser to be crucial to the business relating to this Agreement) and (y) the Servicing File and the Purchased Assets. Seller agrees promptly to provide Purchaser, Verification Agent, Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller’s and Guarantor’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to Purchaser, Agent and/or Verification Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the date purpose of this Agreement answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to Purchaser, Agent and/or Verification Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that Purchaser and/or Agent, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser, Agent and/or Verification Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller Subsidiaryagrees to reimburse Purchaser, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such Agent and/or Verification Agent for all reasonable out-of-pocket due diligence review of Seller, the Seller Subsidiary costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide expenses incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 36.

Appears in 2 contracts

Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust), Master Repurchase Agreement (Pennymac Financial Services, Inc.)

Due Diligence. (a) Seller covenants and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and At any time between the Effective TimeDate and Closing, in addition to BuyerRedeveloper and Redeveloper’s rights provided by Section 5.1(a)agents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, employees (collectively the “Entrants”) shall have the full right continuing right, on three (3) days prior notice to the Township (athe “Entry Notice”), and at reasonable times, to enter the Township-Owned Property to carry out or perform any inspections, tests, investigations and studies (the “Entry Activities”) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion Township-Owned Property which Redeveloper deems necessary or appropriateappropriate for purposes of ascertaining the physical feasibility of redeveloping, or to survey, the Township-Owned Property. The Township agrees to reasonably cooperate with Redeveloper and Redeveloper’s professionals and consultants in making the Township-Owned Property available for such investigations and Entry Activities. Redeveloper’s Entry Notice shall set forth a date and time of entry, the identity of all persons and entities who shall enter upon the Property, the estimated duration of the entry, and a description of the anticipated Entry Activities to be performed during the entry and locations where the activities will be performed. The Township shall have the right, but not the obligation, to have representatives present during each such access to the Property in order to observe all Entry Activities. Redeveloper shall have the right to collect split samples from any samples taken by Entrants upon prior notice of same. All activities performed by the Entrants shall be undertaken in a good and workmanlike manner, and shall not cause any permanent damage to the Property. While performing the Entry Activities, the Entrants shall exercise that degree of care and skill ordinarily exercised under similar circumstances by members of the environmental and engineering consulting professions, as applicable, performing the kind of Entry Activities being performed hereunder and practicing in the same or similar locality during the same general period of time. Redeveloper shall pay for all Entry Activities performed, and cause its authorized consultants, agents, contractors, and subcontractors, as the case may be, to pay for all work, free and clear of all mechanic’s and construction liens and encumbrances. If the Entry Activities results in the discovery of handling of hazardous materials or any contamination, Redeveloper agrees that Entrants will use that degree of skill and care in exercising its rights under this Agreement that are consistent with prudent procedure under such circumstances. Redeveloper, at its own cost and expense, shall obtain all governmental approvals (local, state and federal) and any other approvals necessary for the Entry Activities, including obtaining a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory xxxx-out of all assets and other Intellectual Property utilities at the Property, prior to the commencement of Seller and the Seller Subsidiaryany Entry Activities. Seller The Township shall promptly have no responsibility whatsoever for any damage to existing improvements, utilities, or communications systems caused as a result of work performed under this Agreement. Redeveloper shall provide to Buyer copies the Township evidence of all documents related insurance coverage in types and amounts reasonably acceptable to Township, prior to gaining access to the Seller Business Township-Owned Property or conducting any tests or investigations thereon. All such insurance policies and declaration pages shall name the Township as an additional insured, and, prior to the initial entry contemplated by the section, Redeveloper shall provide the Township with declaration pages showing that Buyer reasonably requestsit has been named as an additional insured. Buyer and BuyerIt is understood that Redeveloper’s representatives and agents shall be permitted to meet with representatives and employees right of Seller individually and as a group. The due diligence review by Buyer entry under this Section will be at BuyerRedeveloper’s sole expenserisk, except that Seller shall make Seller’s and Redeveloper agrees to indemnify and hold the Seller Subsidiary’s Township, including its collective employees, officers, agents, and representatives, officers harmless against any and accountants available to Buyer without charge all damages, liability, claims, costs, obligations, payments, penalties, fines, expenses (including reasonable attorneys’ fees, engineering fees, or other professional fees) and shall provide copies judgments incurred by or asserted against Township or the Township-Owned Property arising out of documents to Buyer without charge. If the results of such or in connection with Redeveloper’s due diligence review and Entry Activities at or meetings are on the Township-Owned Property, excluding, however, liability, claims, costs, or expenses arising out of existing violations of Environmental Laws or other Applicable Laws identified or discovered at the Township-Owned Property during the course of Redeveloper’s investigations but not entirely satisfactory caused by Redeveloper, and further excluding any damage, liability, claims, costs, or acceptable to Buyer expenses caused by the Township’s own gross negligence or willful act or omission. Redeveloper shall further be responsible for restoring the Township-Owned Property following any reason whatsoeverintrusive testing, as determined by Buyer in Buyersampling or similar activity. Redeveloper’s reasonable discretion, then, notwithstanding obligations under this Section shall survive delivery of the Deed or any other term or provision termination of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 2 contracts

Samples: Redevelopment Agreement, Redevelopment Agreement

Due Diligence. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, Seller and Servicer, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that (a) upon reasonable prior notice to Seller, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer within [***] of such request, an electronic copy via email to [***], in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Assets from Seller and enter into additional Transactions with respect to the Mortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties with respect to the Mortgage Loans and otherwise regenerating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all outofpocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable activities pursuant to this Section 19. Buyer may, based on such due diligence, require to change contractual terms and add protections it deems, in its absolute discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever necessary to proceed with or to consummate any of protect its rights in the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyMortgage Loans.

Appears in 2 contracts

Samples: Master Repurchase Agreement (Finance of America Companies Inc.), Master Repurchase Agreement (Finance of America Companies Inc.)

Due Diligence. Seller acknowledges that Purchaser has the right to perform continuing due diligence reviews with respect to the Purchased Assets, the Seller, the Servicer and the Guarantor for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise. Seller agrees that, upon reasonable request from Purchaser, Seller shall provide Purchaser will copies of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to the Purchased Assets and the Seller, the Servicer and the Guarantor in the possession or under the control of Seller, Guarantor and/or Servicer in order to allow Purchaser to complete any continuing due diligence referenced above. Furthermore, Seller agrees that, upon reasonable prior notice to Seller, Purchaser or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of Seller, Guarantor, Servicer and/or the Custodian (awith respect to Custodian, subject to the terms of the Custodial Agreement); provided, that Seller shall only be required to grant Purchaser access to its facilities one (1) time in any twelve (12) month period unless (x) a Default or Event of default has occurred and is continuing or (y) Purchaser determines, based upon its commercially reasonable business judgment exercised in good faith, that Seller’s existence or business operations are in jeopardy. Seller also shall make available to Purchaser a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Asset Files and the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser may enter into Transactions with Seller based solely upon the information provided by Seller to Purchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets. Purchaser may underwrite such Purchased Assets itself or engage a third party underwriter to perform such underwriting. Seller agrees to cooperate with Purchaser and any third party underwriter in connection with such underwriting, including, but not limited to, providing Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller. Seller agrees to cause Servicer and Guarantor to comply with the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller SubsidiaryArticle 26. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s reimburse Purchaser for any and the Seller Subsidiary’s employeesall attorneys’ fees, representatives, officers costs and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such expenses incurred by Purchaser in connection with continuing due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other performed under this Article 26 during the term or provision of this Agreement, Buyer will have no duty or obligation which amounts shall be paid by Seller to Purchaser within five (5) days after receipt of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyan invoice therefor.

Appears in 2 contracts

Samples: Master Repurchase Agreement (NewStar Financial, Inc.), Master Repurchase Agreement (NewStar Financial, Inc.)

Due Diligence. (a) Subject to the provisions of Section 7.1 below, Asset Seller covenants and hereby agrees to all deliver to Asset Buyer within five (5) business days following the Effective Date which shall mean the date on which the last of the terms Asset Buyer, Asset Seller and provisions any other party signing this Agreement shall have signed or initialed this Agreement, as applicable (“Effective Date”), those due diligence items (“Due Diligence Items”) reasonably requested by Asset Buyer or set forth herein. Asset Buyer shall have thirty (30) days (“Due Diligence Period”) from Asset Seller’s written indication to Asset Buyer that Asset Seller has delivered all (or substantially all available Due Diligence Items to review and to approve the Due Diligence Items and any other information or documentation it acquires, where Asset Seller will confirm to Asset Buyer that it has delivered all such information and materials in its possession or control for review. If Asset Buyer, in its sole discretion, does not approve any of the Due Diligence Items or any of the information provided to Asset Buyer pursuant to this section or any information or documentation it otherwise acquires at any time prior to the expiration of the Due Diligence Period, Asset Buyer, at its option, may terminate this Agreement by written notice to Asset Seller delivered at any time within 48 hours after the expiration of the Due Diligence Period, whereupon this Agreement shall become null and void and of no further force and effect, the Deposit (as defined below) shall be returned to the Asset Buyer and the parties hereto shall have no further obligation one to the other. However, in lieu of such immediate termination of this Agreement, Asset Buyer may at its option, notify Asset Seller in writing of those matters as to which it has concerns and extend the Due Diligence Period and Asset Buyer’s right to terminate this Agreement and to receive the return of the Deposit as to those items only shall be extended for a period of an additional fifteen (15) days in order to give the parties the opportunity to resolve such concerns. Asset Buyer’s failure to terminate this Agreement pursuant to this Section 1.4 shall not affect Asset Buyer’s right to require the satisfaction of all conditions to closing set forth in this Section 5.2(a)Agreement. Between the date Asset Buyer and Asset Seller shall also take all necessary steps following execution of this Agreement and to obtain the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and transfer of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with Liquor License or to consummate any obtain a new liquor license in favor of Asset Buyer necessary to run the transactions contemplated by this Agreement, including Business from the Merger, or to negotiate revised terms, provisions or conditions for any of ALA (the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty“Liquor License”).

Appears in 2 contracts

Samples: Asset Purchase Agreement (Ark Restaurants Corp), Asset Purchase Agreement (Ark Restaurants Corp)

Due Diligence. Each of Seller and Guarantor acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to Seller Parties, the Guarantor, the Servicer, the Purchased Assets, Pledged Assets, Underlying Mortgage Loans subject to any Transaction and Underlying REO Property in connection with any Transaction or otherwise pledged hereunder, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each of Seller and Guarantor agrees that (a) upon reasonable prior notice to Seller unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets, Pledged Assets, Underlying Mortgage Loans, Underlying REO Properties of the Seller (the “Due Diligence Documents”) in the possession or under the control of Seller, Guarantor, Servicer and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer within twenty (20) calendar days of such request, an electronic copy on CD or DVD, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files, the Purchased Assets, the Pledged Assets, the Underlying REO Property and the Underlying Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Assets from Seller based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Assets, Pledged Assets, Underlying Mortgage Loans subject to a Transaction or Underlying REO Properties pledged in connection with a Transaction, including, without limitation, ordering appraisals or BPOs, new credit reports and provisions set forth in this Section 5.2(a). Between new appraisals on the date related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan, performing compliance, legal, credit and servicing file reviews, as well as reviews of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, claim history and prospects files with FHA, VA and USDA and verification of the Seller Business with representatives FHA Mortgage Insurance in place, VA Loan Guaranty Agreement in place and employees of Seller USDA Guaranty in place. Buyer may due diligence such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and the Seller Subsidiary and (c) otherwise Underlying REO Properties itself or engage a mutually agreed upon third party due diligence firm to perform such due diligence review of Sellerdiligence, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a subject to such third party due diligence review firm executing the Buyer’s standard form of non-disclosure agreement. Seller agrees to cooperate with Buyer and any third party due diligence firm in connection with such underwriting, including, but not limited to, providing Buyer and any third party due diligence firm with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties in the Contractspossession, assetsor under the control, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives provided, however, that unless an Event of Default has occurred and agentsis continuing, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiarysuch on-site visits and/or on-site examinations shall be limited to one (1) per calendar year. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all reasonable third-party out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretionactivities pursuant to this Section 21 (“Due Diligence Costs”) in an amount not to exceed the Due Diligence Cap per calendar year; provided that the Due Diligence Cap shall not apply upon the occurrence and continuance of an Event of Default. In addition, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment perform corporate level due diligence on the Seller and Servicer, provided, however, that prior to the occurrence and continuation of any damages or penaltyan Event of Default the Seller shall not be required to pay for such corporate level due diligence more than once per annum (which due diligence shall also be subject to the Due Diligence Cap; provided that the Due Diligence Cap shall not apply upon the occurrence and continuance of an Event of Default).

Appears in 2 contracts

Samples: Master Repurchase Agreement (Rocket Companies, Inc.), Master Repurchase Agreement (Rocket Companies, Inc.)

Due Diligence. Buyer has paid Seller the sum of $25.00, the receipt of which is hereby acknowledged by Seller, as option money for Buyer having the right to terminate this Agreement during the Due Diligence Period. Within ten (a10) days after the Effective Date, Seller covenants shall deliver to Buyer the Due Diligence Materials to the extent within Seller’s possession. Upon the completion of Seller’s delivery to Buyer of all such Due Diligence Materials, Buyer and agrees Seller shall agree in writing (which may be via e-mail) as to all such date of the terms and provisions set forth in this Section 5.2(a). Between completion of delivery, which shall be the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and commencement of the Seller SubsidiaryDue Diligence Period. Prior to Closing, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s 's representatives and agents shall be permitted have the right to meet with enter upon Property at Buyer's expense, and at reasonable times, to inspect, survey, examine, and test the Property as Buyer may deem necessary as part of Buyer's acquisition of the Property. Seller shall allow Buyer and its representatives and employees agents access to, or shall provide documents for review, whichever the case may be, with respect to the Property at all reasonable times and shall cooperate with Buyer’s efforts to conduct the inspections permitted herein. Seller agrees to cooperate in introducing Buyer to vendors, staff and other parties who have experience with the Property’s ongoing operations. Buyer shall indemnify and hold Seller harmless from and against any and all claims, injuries and damages to persons and/or property arising out of or resulting from the exercise of Buyer’s inspection rights; provided, however, Buyer’s indemnity obligations shall not extend to any claims, injuries or damages resulting from or relating to (i) any action of Seller individually and as a group. The due diligence review or its agents or representatives or (ii) any existing environmental contamination or other conditions with respect to the Property that may be discovered by Buyer will be as the result of its investigations. During the Due Diligence Period, Buyer may evaluate the Property, the feasibility of the transaction, the availability and cost of financing, and any other matters of concern to Buyer. Buyer shall have the right to terminate this Agreement by delivering notice to Seller at Buyer’s sole expenseor before 11:59 p.m. Eastern time on the last day of the Due Diligence Period, except that Seller shall make Seller’s and the Seller Subsidiary’s employeesif Buyer determines, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoeveror no reason, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever that it is not desirable to proceed with the transaction. In such event, Holder shall promptly refund the Xxxxxxx Money to Buyer, and neither party shall have any further obligations or to consummate any of the transactions contemplated by liability under this Agreement except as expressly provided in this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Manufactured Housing Properties Inc.)

Due Diligence. Each Seller Party and Guarantor acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans and Underlying REO Property and Seller Parties and Guarantor, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller Party and Guarantor agrees that (a) upon reasonable prior notice to Sellers and Guarantor unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans and Underlying REO Property (the “Due Diligence Documents”) in the possession or under the control of Sellers and/or Guarantor and/or the Custodian, or (b) upon request, Sellers or Guarantor shall create and deliver to Buyer within five (5) Business Days of such request, an electronic copy on CD or DVD, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Sellers and Guarantor also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files, Purchased Mortgage Loans and Underlying REO Property. Without limiting the generality of the foregoing, each Seller Party and Guarantor acknowledges that Buyer may purchase Mortgage Loans from Sellers and enter into Transactions with respect to REO Property based solely upon the information provided by Sellers or Guarantor to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Mortgage Loans and provisions set forth Underlying REO Property purchased in this Section 5.2(a)a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to acquire such Purchased Mortgage Loans and Underlying REO Property. Between the date of this Agreement Buyer may underwrite such Purchased Mortgage Loans and the Effective TimeUnderlying REO Property itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller Party and Guarantor agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, in addition including, but not limited to, providing Buyer and any third party underwriter with access to Buyer’s rights provided by Section 5.1(a)any and all documents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books agreements, instruments or information relating to such Purchased Mortgage Loans and records of Seller and of Underlying REO Property in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review Seller Party and/or Guarantor. Each Seller Party and Guarantor further agrees that Sellers or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined Guarantor shall pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s reasonable discretionactivities pursuant to this Section 19, thensuch amount not to exceed the Due Diligence Cap per calendar year (“Due Diligence Costs”), notwithstanding any other term or provision unless an Event of this AgreementDefault shall have occurred and be continuing, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyin which case such limit shall not apply.

Appears in 1 contract

Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)

Due Diligence. The Sellers acknowledge that Buyer has the right to perform continuing Due Diligence Reviews with respect to the Mortgage Loans and the Sellers, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Sellers agree that upon reasonable (abut no less than three (3) Seller Business Day’s) prior notice unless an Event of Default shall have occurred or Buyer has a good faith belief that an Event of Default shall occur, in which case no notice is required, to the Sellers, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Sellers and/or the Custodian. The Sellers also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, the Sellers acknowledge that Buyer may purchase Mortgage Loans from the Sellers based solely upon the information provided by the Sellers to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete Due Diligence Review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Sellers agree to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Sellers. The Sellers further agree that the Sellers shall pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 5.2(a27 (“Due Diligence Costs”). Between ; provided, that such Due Diligence Costs shall not exceed the date Due Diligence Cap unless a Default or Event of this Agreement and the Effective TimeDefault shall have occurred, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, which event Buyer shall have the full right to (a) examine perform due diligence, at the offices, properties, equipment, invoices, customer records, agreement books and records sole expense of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySellers.

Appears in 1 contract

Samples: Master Repurchase Agreement (Homebanc Corp)

Due Diligence. (a) Seller covenants and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective TimeDecember 31, 2010, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Ethos Environmental, Inc.)

Due Diligence. (a) Seller covenants Notwithstanding anything set forth to the contrary herein, Buyer shall be entitled after the Acceptance Date to enter on the Property with its representatives and agrees contractors and to all conduct due diligence inspections of the terms Property and provisions analyze all information pertaining to the Property and to prepare or have prepared a survey and / or site plans of the Property (collectively, “Due Diligence”). Buyer shall pay all costs of the Due Diligence (except as explicitly set forth in this Section 5.2(a4.D.), shall restore any damage or disturbance to or of the Property that occurs as a result thereof, and shall indemnify and hold Seller harmless from and against any costs, claims, liability or expenses, including attorneys’ fees, that arise out of the conducting of the Due Diligence. Between If in the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a)sole subjective discretion, Buyer, acting through as a result of Buyer’s own personnelDue Diligence, legal counselthe results of any inspection are unacceptable or unsatisfactory, accountants and other representatives and agents, then Buyer shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of terminate this Agreement, in which event the Deposit shall be immediately returned to Buyer, provided, however, that such written notice of termination is given by Buyer to Seller on or before July 31, 2020 (the “Due Diligence Expiration Date”). In the event of termination, after Xxxxx’s compliance hereunder and return of the Deposit, there shall be no further liability or obligation on either of the parties hereto and this Agreement shall then and thereafter be null and void. If Xxxxx’s notice of termination is not so timely given, then the foregoing contingency shall be deemed to have been satisfied and is hereby removed from this Agreement. It is understood and agreed that the Property is being sold “as is”, that Xxxxx has, or will have no duty prior to the Due Diligence Expiration Date inspected the Property determined its suitability for Buyer’s intended use. In purchasing the Property, Xxxxxxxxx is not acting in reliance upon any representation made by the Seller or obligation any other officer, partner or employee of Seller or by any kind Agent of the Seller, their salespersons and employees, officers and/or partners. Buyer acknowledges that Brokers, their licensees, employees, officers or nature whatsoever to proceed with partners have not made an independent examination or to consummate determination of the structural soundness of the Property, the age or condition of the components, environmental conditions, the permitted uses, or of conditions existing in the locale where the Property is situated; nor have they made a mechanical inspection of any of the transactions contemplated by this Agreement, including systems contained therein. Buyer reserves the Merger, or right to negotiate revised terms, provisions or conditions for any make a pre-settlement inspection of the transactions contemplated by this Property. Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 1 contract

Samples: Purchase Agreement

Due Diligence. (a) Each Seller and Guarantor acknowledge that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, Servicer, Guarantor and Sellers, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Sellers and Guarantor agree that upon reasonable prior notice unless an Event of Default has occurred, in which case no notice is ‑61‑ required, to Sellers or Guarantor, as applicable, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Sellers, Guarantor, Servicer and/or Custodian. Sellers and Guarantor also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Sellers, Guarantor, the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Each Seller and Guarantor acknowledge that Buyer may purchase Mortgage Loans from Sellers based solely upon the information provided by Sellers to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re‑generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller and Guarantor agree to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of such Seller or Guarantor. Each Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform Guarantor further agree that such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of pay all documents related to the Seller Business that Buyer reasonably requests. Buyer out‑of‑pocket costs and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretionactivities pursuant to this Section 18 (“Due Diligence Costs”); provided that, thenwith respect to Due Diligence Costs incurred after the Effective Date, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions such Due Diligence Costs for any one-year term shall not exceed the Annual Cap; and, provided further, that upon the occurrence of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment Event of any damages or penaltyDefault no Annual Cap shall apply.

Appears in 1 contract

Samples: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)

Due Diligence. (a) Seller covenants The Holder has had the opportunity to conduct due diligence to become familiar with dreamlife, its assets, liabilities, fiscal affairs, operations and value. The Holder, prior to executing this Agreement, has had adequate opportunity to show this Agreement to, and consult with, independent legal counsel of her own choosing. Stockholders Agreement. Holder agrees that, upon exercise of the Option, she shall take the Option Shares subject to all of the terms and provisions set forth of that certain Stockholders' Agreement, dated as of May 27, 1999, as it may be amended from time to time and to the extent then in this Section 5.2(a). Between effect (the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a"Stockholders Agreement"), Buyerby and among GHS, acting through Buyer’s own personnelInc. (now known as dreamlife, legal counselinc.), accountants Anthony J. Robbins, Robbins Researxx Xxxxxxxxxxxxx Xnc., xxx the Company. Holder further agrees to take any additional actions, including, without limitation, the execution of additional documents, as may be requested by the Company and/or dreamlife in order to effectuate the foregoing. Holder acknowledges that she has had an opportunity to review the Stockholders Agreement which contains, among other things, certain restrictions on voting rights and certain restrictions on transfers of stock. Rights as Shareholder of dreamlife. The Holder shall not be entitled to vote or receive dividends or be deemed a holder of dreamlife Stock or any other representatives and agents, shall have securities of dreamlife which may at any time be issuable on the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and exercise of the Seller SubsidiaryOption for any purpose, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents nothing contained herein shall be permitted construed to meet with representatives and employees confer upon the Holder any rights or privileges of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies shareholder of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreementdreamlife, including the Mergerright to vote for the election of directors or any other matter submitted to shareholders of dreamlife at any meeting thereof, or to negotiate revised termsreceive notice of meetings, provisions or conditions for any to receive dividends or subscription rights or otherwise unless and until the Option shall have been exercised and certificates representing the Option Shares shall be endorsed, transferred and delivered to the Holder and the Holder's name has been entered as a shareholder of record on the books of dreamlife. The existence of the transactions contemplated by this AgreementOption herein granted shall not affect in any way the right or power of dreamlife or its shareholders to make or authorize any or all adjustments, including recapitalizations, reorganizations or other changes in dreamlife's capital structure or its business, or any merger or consolidation of dreamlife, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the MergerOption Shares or the rights thereof, and Buyer may terminate this Agreement without payment or dissolution or liquidation of dreamlife, or any damages sale or penaltytransfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.

Appears in 1 contract

Samples: Option Agreement (Cyl Development Holdings LLC)

Due Diligence. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans, Seller, and, to the extent reasonably requested, each Servicer, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Purchased Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, to review the servicing of the Purchased Mortgage Loans, or otherwise, and Seller agrees that (a) upon reasonable prior written notice to Seller, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its Authorized Representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer within three (3) Business Day of such request, an electronic copy via email to [***], in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Purchased Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Mortgage Loans from Seller and enter into additional Transactions with respect to the Purchased Mortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Mortgage Loans purchased in a Transaction, including, without limitation, ordering new credit reports and provisions set forth new appraisals on the related Mortgaged Properties with respect to the Mortgage Loans and otherwise re-generating the information used to originate such Mortgage Loan, which information may be used by Buyer to calculate Market Value. Buyer may underwrite such Purchased Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Xxxxxx agrees to cooperate with Buyer or any third party underwriter in this Section 5.2(a). Between the date of this Agreement and the Effective Timeconnection with such underwriting, in addition including, but not limited to, providing Buyer with access to Buyer’s rights provided by Section 5.1(a)any documents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Sellerpay all out-of-pocket costs and expenses incurred by Xxxxx in connection with Xxxxx’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable activities pursuant to Buyer for any reason whatsoever, this Section 20 (as determined evidenced in reasonably detailed report by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyXxxxx).

Appears in 1 contract

Samples: Master Repurchase Agreement and Securities Contract (UWM Holdings Corp)

Due Diligence. (a) Seller covenants and agrees to all of acknowledges that Buyer has the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such continuing due diligence review reviews with respect to the Purchased Assets, for purposes of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, verifying compliance with the assistance representations, warranties and specifications made hereunder, or determining or re-determining the Asset Base for purposes of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision Section 4 of this Agreement, Buyer will have no duty or obligation of otherwise, and Seller agrees that Buyer, at its option, has the right at any kind time to conduct a partial or nature whatsoever to proceed with complete due diligence review on any or to consummate any all of the transactions contemplated Purchased Assets, including, without limitation, ordering new credit reports and Appraisals on the applicable collateral and otherwise regenerating the information used to originate such Purchased Assets. Upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to any Purchased Asset in the possession or under the control of Seller, any servicer or sub-servicer and/or Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Asset Files, the Servicing Records and the Purchased Assets. Seller agrees to cooperate with Buyer and any third party underwriter designated by this AgreementBuyer in connection with such underwriting, including including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the Mergerpossession, or under the control, of such Seller. Seller agrees to negotiate revised terms, provisions or conditions reimburse Buyer for any and all attorneys’ fees, costs and expenses incurred by Buyer in connection with continuing due diligence on Eligible Assets and Purchased Assets, including, without limitation, the cost of annual updated Appraisals on the transactions contemplated by this Agreement, including the Merger, Mortgaged Properties and Buyer may terminate this Agreement without payment of any damages or penaltyDiligence Fees.

Appears in 1 contract

Samples: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)

Due Diligence. (a) Seller acknowledges that Buyer has the right, at its own cost and expense except as provided in the fourth sentence of this Section 20, to perform reasonable continuing due diligence reviews with respect to the Purchased Assets and the related Underlying Assets for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets and Underlying Assets in the possession or under the control of Seller, any other servicer or subservicer and/or the Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Asset Files, the Purchased Assets and Underlying Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Assets and provisions Underlying Assets. Any provision hereof to the contrary not withstanding and except as provided in the following sentence with respect to the underwriting of Purchased Assets by Buyer or its designee, Seller shall pay the initial $7,500 (per Underlying Asset) of the reasonable costs and expenses of Buyer and its counsel incurred in connection with that portion of its due diligence review intended to satisfy it that the statements set forth in this Section 5.2(a)Exhibit VI and/or Exhibit VII, as applicable, are true and correct with respect to each Underlying Asset. Between the date of this Agreement Buyer may underwrite such Purchased Assets and the Effective TimeUnderlying Assets itself or, at its own cost and expense, engage a third party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Buyer and any third party underwriter in addition connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to Buyer’s rights provided by Section 5.1(a)any and all documents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books agreements, instruments or information relating to such Purchased Assets and records of Seller and of Underlying Assets in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 1 contract

Samples: Master Repurchase Agreement (Capital Trust Inc)

Due Diligence. (a) Seller agrees that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Securities and the Purchased Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted, upon 2 Business Days prior written request, during normal business hours and subject to the Seller’s normal security and confidentiality procedures to examine, inspect, and make copies and extracts of, the Purchased Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Securities and Purchased Loans in the possession or under the control of Seller, any other servicer or subservicer and/or the Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Loan Files and the Purchased Securities and Purchased Loans. Without limiting the generality of the foregoing, Seller agrees that Buyer may enter into Transactions with the Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Securities and provisions set forth Purchased Loans. Buyer may underwrite such Purchased Loans itself or engage a third party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Buyer and any third party underwriter reasonably acceptable to Seller in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Repurchase Agreement $250MM Facility FINAL VERSION Securities and Purchased Loans in the possession, or under the control, of Seller. In addition, Seller shall provide Buyer with reasonable access to operating statements, the occupancy status and other property level information, with respect to the Mortgaged Properties, plus any such additional reports as Buyer may reasonably request. Seller also agrees to reimburse Buyer as and when billed by Buyer for any and all out-of-pocket costs and expenses reasonably incurred in connection with Buyer’s due diligence reviews with respect to the Purchased Loans and Purchased Securities pursuant to this Section 5.2(a). Between the date of this Agreement 28 and the Effective Time, in addition to enforcement or the preservation of Buyer’s rights provided by Section 5.1(a)under this Agreement or any Transaction contemplated hereby, Buyerincluding without limitation the reasonable fees and disbursements of its counsel; provided, acting through Buyer’s own personnel, legal counsel, accountants that with respect to such costs and other representatives and agents, shall have the full right expenses relating to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review reviews prior to any Event of SellerDefault, the Seller Subsidiary shall only be required to reimburse Buyer for such costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a expenses relating to two due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for reviews during any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty12 month period.

Appears in 1 contract

Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)

Due Diligence. In addition to Purchaser’s rights under Section 3(j), Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (ax) Seller covenants and its Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of its obligations under the Program Documents, and (y) the Servicing File and the Purchased Assets. Seller agrees promptly to provide Purchaser, Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to Purchaser and/or Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the date purpose of this Agreement answering questions respecting the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to Purchaser and/or Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that Purchaser and/or Agent, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such agrees to reimburse Purchaser and/or Agent for all reasonable out-of-pocket due diligence review of Seller, the Seller Subsidiary costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide expenses incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 36.

Appears in 1 contract

Samples: Master Repurchase Agreement (Velocity Financial, LLC)

Due Diligence. (a) The Seller covenants acknowledges that the Purchaser has the right to perform continuing due diligence and agrees other reviews with respect to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement Note and the Effective Timeother Purchased Items and the Seller, the Guarantor and the Pledgor for purposes of verifying compliance with the representations, warranties, covenants, agreements and specifications made hereunder, under the Repurchase Documents, the Asset Documents or otherwise, and the Seller agrees on behalf of itself and the Guarantor and the Pledgor that, upon reasonable (but no less than one (1) Business Day’s) prior notice, unless an Event of Default shall have occurred, in addition which case no notice is required, to Buyer’s rights provided by Section 5.1(a)the Seller, Buyeras applicable, acting through Buyer’s own personnelthe Purchaser or its authorized representatives shall be permitted during normal business hours to examine, legal counselinspect, accountants and other representatives make copies and agentsextracts of, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller the Seller, the Guarantor and/or the Pledgor and any and all documents, records, agreements, instruments or information relating to the Note and the other Purchased Items in the possession or under the control of the Seller SubsidiarySeller, (b) meet the Guarantor, the Pledgor and discuss any Affiliates of the Seller Business foregoing. The Seller, the Guarantor and the operationsPledgor also shall make available to the Purchaser a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Seller, history the Guarantor and prospects the Pledgor, the Note and the other Purchased Items and the Seller’s, the Guarantor’s and the Pledgor’s books and records. The Seller, the Guarantor and the Pledgor shall also make available to the Purchaser any accountants or auditors of the Seller Business with representatives and employees of Seller Seller, the Guarantor and the Pledgor to answer any questions or provide any documents as the Purchaser may require. The Seller Subsidiary shall also cause NRFC Luxembourg and (c) otherwise perform each servicer or trustee with respect to the Note and the other Purchased Items to cooperate with the Purchaser by permitting the Purchaser to conduct due diligence reviews of files of XXXX Xxxxxxxxxx and each such servicer or trustee relating to the Note and the other Purchased Items to the extent such reviews are permitted under the terms of the Asset Documents. The Purchaser, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of Seller, the Seller Subsidiary Note and the other Purchased Items purchased in a Transaction, including, without limitation, ordering new credit reports and new appraisals on the related Mortgaged Properties and otherwise re—generating the information used to originate such Note and the other Purchased Items. The Purchaser may underwrite such Note and the other Purchased Items itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Seller Business as Buyer agrees to reasonably cooperate with the Purchaser and any third party underwriter in its sole connection with such underwriting, including, but not limited to, providing the Purchaser and absolute discretion deems necessary any third party underwriter with access to any and all documents, records, agreements, instruments or appropriateinformation relating to such Note and the other Purchased Items in the possession, including a due diligence review or under the control, of the Contracts, assets, rights, liabilities Seller. The Seller shall pay all out—of—pocket costs and Intellectual Property of Seller . Buyer’s representatives and agents, expenses incurred by Purchaser in connection with the assistance of SellerPurchaser’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide activities pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 27.

Appears in 1 contract

Samples: Note Purchase Agreement (Northstar Realty)

Due Diligence. (a) Seller covenants and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, Purchaser shall have the full right right, during the Due Diligence Period, to (a) examine inspect the officesProperty and to investigate existing zoning, properties, equipment, invoices, customer records, agreement books the physical and records of Seller and environmental condition of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of SellerProperty, the adequacy of existing utilities and any other factors Purchaser deems relevant in determining whether to purchase the Property. Within two (2) business days after the Effective Date, Seller Subsidiary and shall make available to Purchaser at the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance offices of Seller’s personnel Counsel in Morristown, New Jersey all documentation in possession of Seller’s Counsel relating to environmental conditions at the Property (the “Environmental Documents”) and shall make available to the personnel Purchaser’s environmental and property condition consultants at the Property a person in Seller’s employ knowledgeable about the Property’s use by Seller, and Seller’s counsel shall deliver to Purchaser’s counsel a copy of Seller’s current title policy and survey relating to the Property. For purposes of conducting such inspections and studies, Purchaser shall have access to the Property at all reasonable times, subject to Section 4.2 below. If for any reason (including but not limited to Purchaser’s discovery during the Due Diligence Period of additional areas of environmental concern not previously identified by Philips Electronics North America Corporation (“PENAC”) in the course of its investigation or remediation of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related pursuant to the Seller Business that Buyer reasonably requestsIndustrial Site Recovery Act, N.J.S.A. 13:1K-6 et al. Buyer and Buyer’s representatives and agents shall be permitted (“ISRA”) or the absence of documentation evidencing PENAC’S responsibility to meet remediate the Property) or for no reason Purchaser is not satisfied with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoeverits investigations, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer Purchaser may terminate this Agreement without payment on notice to Seller and Escrow Agent given within the Due Diligence Period. In the event of such termination, the Deposit, shall be returned to Purchaser, whereupon, except as expressly provided in this Agreement, all rights and obligations of the respective parties hereunder shall be null and void. If Purchaser does not deliver such notice of termination pursuant to this Section 4.1 within the Due Diligence Period, Purchaser shall conclusively be deemed to have waived its right of termination under this Section 4.1. Purchaser may, in its sole discretion, waive the balance of the Due Diligence Period at any damages or penaltytime prior to the end of the Due Diligence Period by notifying Seller, in writing, in which instance the Due Diligence Period will be deemed to have expired.

Appears in 1 contract

Samples: Agreement of Sale (Djo Inc)

Due Diligence. Buyer, or its designees, will have a period of forty-five (a45) days after Seller's execution of this Agreement (the "Due Diligence Period"), to enter the Property to make inspections, engineering tests, surveys, and other such tests, examinations and inspections as Buyer may desire as long as such tests, examinations, etc., do not unreasonably interfere with the operations or any current use of the Property. All entry upon the Property and any and all contact with on site employees of Seller covenants by Buyer shall be upon prior notice to Seller and, at Seller's option, accompanied by an agent of Seller. Requests for entry upon the property or to contact any employees of Seller shall be initiated only through James Duberstein or Joseph M. Jayxxx xxx xxxxx xx conxxxxxx xx xxxxxx conformance with the restrictions in this Agreement and specifically this Section 3 and Section 8(d). Notwithstanding the foregoing, Buyer agrees to complete its own Lease review, physical inspection, and financial analysis within the first fifteen (15) days of Buyer's Due Diligence. Buyer agrees to notify Seller as to whether its preliminary review of the above is satisfactory within said 15 days. In addition, Buyer agrees to order of all its third party reports including environmental, engineering, or other physical reports within said first fifteen (15) days of Buyer's Due Diligence. If the Closing of the Property does not occur, Buyer shall restore the Property to the same condition as prior to any entry by Buyer. All due diligence materials previously submitted to Buyer must be maintained by Buyer or its attorneys or agents on a confidential basis and returned to Seller if Buyer terminates this Agreement. Buyer agrees that it will not use the Due Diligence materials for any purpose other than to determine whether to acquire the Property and agrees that it will not make contact with Seller's tenants unless closing occurs. In addition, Buyer agrees that it will under no circumstances make any offer, or use the Due Diligence materials, to all acquire the interest of any partner(s) of the terms and provisions set forth in this Section 5.2(a). Between selling entities or the current fee owner or its affiliates for a period of two (2) years after the date of this Agreement and the Effective TimeContract. Buyer and/or its agents will not, in addition under any circumstances, disclose to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records any of Seller and Seller's employees that it is contemplating acquisition of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business Property without Seller's written consent prior to closing. Buyer will make no contact with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review any of Seller, the Seller Subsidiary 's employees without Seller's express written consent; except for contacts with Seller's employees allowed under Section 8(d) and the Seller Business as Buyer except for contacts within three (3) days of closing in its sole connection with takeover and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller closing arrangements. Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review All third party reports desired by Buyer will be ordered by Buyer at Buyer’s sole 's expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment agrees that it will supply copies to Seller of any damages or penaltyeach and every report upon receipt.

Appears in 1 contract

Samples: Real Estate Purchase Agreement (Realmark Property Investors LTD Partnership V)

Due Diligence. Subject to Section 14(z) and the limitations contained in the Pricing Side Letter and the EPF Pricing Side Letter, (ai) Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (x) Seller covenants and its Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of its obligations under the Program Documents, and (y) the Servicing File and the Purchased Assets and (ii) Seller agrees promptly to provide Purchaser, Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller's respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to Purchaser and/or Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the date purpose of this Agreement answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to Purchaser and/or Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that Purchaser and/or Agent, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller's representations, warranties and covenants set forth herein. Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such agrees to reimburse Purchaser and/or Agent for all reasonable out‑of‑pocket due diligence review of Seller, the Seller Subsidiary costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller expenses incurred pursuant to this Section 36. Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.1041 4689

Appears in 1 contract

Samples: Master Repurchase Agreement (Nationstar Mortgage Holdings Inc.)

Due Diligence. Purchaser, Agent, Verification Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (ax) Seller covenants and Guarantor, including, without limitation, their respective financial condition and performance of its obligations under the Program Documents, and (y) the Servicing File and the Purchased Assets (including, but not limited to, any documentation related to Seller’s FHA servicing practices), and Seller agrees promptly to provide Purchaser, Agent, Verification Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to Purchaser, Agent and/or Verification Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the date purpose of this Agreement answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to Purchaser and/or Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that Purchaser, acting through Buyer’s own personnelAgent and/or Verification Agent, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser, Agent and/or Verification Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller Subsidiaryagrees to reimburse Purchaser, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such Agent and/or Verification Agent for all reasonable out-of-pocket due diligence review of Seller, the Seller Subsidiary costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide expenses incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 36.

Appears in 1 contract

Samples: Master Repurchase Agreement (Walter Investment Management Corp)

Due Diligence. Each Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, Seller Parties, Collateral Administrator and other parties which may be involved in or related to Transactions (acollectively, “Third Party Transaction Parties”), as deemed appropriate by Buyer in its good faith discretion, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, and Seller Parties and Collateral Administrator each agree that upon reasonable prior notice to Seller Parties or Collateral Administrator, as applicable, unless an Event of Default shall have occurred and be continuing, in which case no notice is required, Buyer or its authorized representatives will be permitted at reasonable times to examine, inspect, and make copies and extracts of, the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of any Seller Party or Collateral Administrator; provided however, that unless an Event of Default has occurred and is continuing, Buyer does not expect to conduct more than one (1) such review during any one (1) year period. Seller Parties will use best efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Seller Parties and Collateral Administrator shall also make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files and the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Assets from Seller based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to cause Collateral Administrator or its agent to conduct a partial or complete due diligence review on some or all of the terms Purchased Assets purchased in a Transaction, including, without limitation, ordering new Qualified Appraisals on the related Mortgaged Properties and provisions set forth in this Section 5.2(a). Between otherwise re-generating the date information used to originate such Purchased Asset and reviewing intercreditor agreements, property management agreements, formation documents of this Agreement the property owners and the Effective Timetheir direct and indirect owners, in addition to Buyerfinancial statements, environmental and engineering reports, underlying title policies including owner’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personneland UCC-9 title insurance policies, legal counsel, accountants opinions and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of documents as may be mutually agreed among Seller and Buyer. For the avoidance of the Seller Subsidiarydoubt, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform Collateral Administrator’s obligation to provide such due diligence review of Seller, the Seller Subsidiary and the Seller Business as to Buyer in its sole and absolute discretion deems necessary or appropriate, including a shall not preclude Buyer’s right to perform due diligence review on the Purchased Assets prior to the Purchase Date and as necessary during the term of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoeverAgreement, as determined by Buyer in is sole discretion, subject to the terms of the Mortgage Loan documents. Buyer may underwrite such Purchased Assets itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller and Collateral Administrator agree to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller Parties or Collateral Administrator. Seller further agrees that it shall pay, to the extent Seller has received an invoice therefor, all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s reasonable discretionactivities pursuant to this Section 17; provided that such amounts shall not exceed $6,000 for each Eligible Asset reviewed, thenunless an Event of Default shall have occurred and be continuing, notwithstanding any other term or provision of this Agreementin which case such limit shall not apply; provided further that Seller and Buyer agree that additional expenses may be incurred for complex transactions, Buyer shall use good faith efforts to advise Seller within a reasonable time following obtaining actual knowledge that such expenses will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Mergerbe incurred, and Buyer may terminate this Agreement without payment of any damages or penaltysuch expenses shall be paid by Seller upon demand.

Appears in 1 contract

Samples: Master Repurchase Agreement (RAIT Financial Trust)

Due Diligence. Seller acknowledges that, at reasonable times and upon reasonable notice (abut not less than fifteen (15) Business Days’ prior notice), Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice (but not less than fifteen (15) Business Days’ prior notice) to Seller, Buyer or its authorized representatives (accompanied by a representative of Seller or one of its affiliates) will be permitted during normal business hours to examine, inspect and make copies and extracts of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of Seller, Servicer or subservicer and/or Custodian subject to the terms of any confidentiality agreement between Buyer and Seller and Requirements of Law, and if no such confidentiality agreement then exists between Buyer and Seller, Buyer and Seller shall act in accordance with customary market standards regarding confidentiality and Requirements of Law. Buyer shall act in a commercially reasonable manner in requesting and conducting any inspection relating to the conduct and operation of Seller’s business. Buyer shall be permitted, no more than once a calendar year, to visit Guarantor and/or Seller’s offices at a mutually agreeable time to meet with the investment and management teams including, if requested, a knowledgeable financial or accounting officer, regarding their investment and management strategies with respect to the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer shall enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option and, subject to this Section 28, at its cost, has the right at any time to conduct a partial or complete due diligence review on some or all Purchased Assets. With respect to Discretionary New Assets, Buyer may underwrite such Discretionary New Assets itself or engage, subject to this Section 28, at its cost, a third-party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Buyer and any third-party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third-party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Discretionary New Assets in the possession, or under the control, of the terms and provisions set forth in this Section 5.2(a)Seller. Between the date of this Agreement and the Effective Time, in addition Seller shall reimburse Buyer for all actual out-of-pocket legal costs incurred by Buyer relating to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, any New Asset in an amount not to exceed the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except Diligence Cap; provided that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer be responsible for any reason whatsoever, as determined by other costs and expenses of Buyer incurred in Buyer’s reasonable discretion, then, notwithstanding connection with its diligence or underwriting. Seller agrees to reasonably cooperate with Buyer and any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever Independent Appraiser in connection with obtaining Appraisals required pursuant to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 12(h)(iv).

Appears in 1 contract

Samples: Master Repurchase Agreement and Securities Contract (KKR Real Estate Finance Trust Inc.)

Due Diligence. Each of Seller and Guarantor acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to Seller Parties, the Guarantor, the Servicer, the Purchased Assets, Pledged Assets, Underlying Mortgage Loans subject to any Transaction and Underlying REO Property in connection with any Transaction or otherwise pledged hereunder, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each of Seller and Guarantor agrees that (a) upon reasonable prior notice to Seller unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets, Pledged Assets, Underlying Mortgage Loans, Underlying REO Properties of the Seller (the “Due Diligence Documents”) in the possession or under the control LEGAL02/41441953v3 of Seller, Guarantor, Servicer and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer within twenty (20) calendar days of such request, an electronic copy on CD or DVD, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files, the Purchased Assets, the Pledged Assets, the Underlying REO Property and the Underlying Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Assets from Seller based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Assets, Pledged Assets, Underlying Mortgage Loans subject to a Transaction or Underlying REO Properties pledged in connection with a Transaction, including, without limitation, ordering appraisals or BPOs, new credit reports and provisions set forth in this Section 5.2(a). Between new appraisals on the date related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan, performing compliance, legal, credit and servicing file reviews, as well as reviews of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, claim history and prospects files with FHA, VA and USDA and verification of the Seller Business with representatives FHA Mortgage Insurance in place, VA Loan Guaranty Agreement in place and employees of Seller USDA Guaranty in place. Buyer may due diligence such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and the Seller Subsidiary and (c) otherwise Underlying REO Properties itself or engage a mutually agreed upon third party due diligence firm to perform such due diligence review of Sellerdiligence, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a subject to such third party due diligence review firm executing the Buyer’s standard form of non-disclosure agreement. Seller agrees to cooperate with Buyer and any third party due diligence firm in connection with such underwriting, including, but not limited to, providing Buyer and any third party due diligence firm with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets, Pledged Assets, Underlying Mortgage Loans and Underlying REO Properties in the Contractspossession, assetsor under the control, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives provided, however, that unless an Event of Default has occurred and agentsis continuing, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiarysuch on-site visits and/or on-site examinations shall be limited to one (1) per calendar year. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all reasonable third-party out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretionactivities pursuant to this Section 21 (“Due Diligence Costs”) in an amount not to exceed the Due Diligence Cap per calendar year; provided that the Due Diligence Cap shall not apply upon the occurrence and continuance of an Event of Default. In addition, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment perform corporate level due diligence on the Seller and Servicer, provided, however, that prior to the occurrence and continuation of any damages or penaltyan Event of Default the Seller shall not be required to pay for such corporate level due diligence more than once per annum (which due diligence shall also be subject to the Due Diligence Cap; provided that the Due Diligence Cap shall not apply upon the occurrence and continuance of an Event of Default).

Appears in 1 contract

Samples: Master Repurchase Agreement (Rocket Companies, Inc.)

Due Diligence. Seller acknowledges that Buyer, itself or through a Diligence Provider, has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable (abut no less than three (3) Business Days’) prior notice unless an Event of Default has occurred, in which case no notice is required, to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Seller and/or Custodian. Seller also shall (i) make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans and (ii) upon Buyer’s reasonable request or upon the occurrence of an Event of Default, provide Buyer with electronic access to view title policies for Mortgage Loans subject to Transactions hereunder. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records agreements, instruments, or information relating to such Mortgage Loans in the possession, or under the control, of Seller provided that (A) any request for such documents shall be made in writing and of shall provide the Seller Subsidiaryat least ten (10) Business Days to provide such requested information, and (bB) meet and discuss if the Seller Business and objects to the operationsprovision to Buyer of any such requested information, history and prospects of the Seller Business with representatives and employees of Seller Buyer and the Seller Subsidiary and (c) otherwise perform shall work in good faith to resolve any such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiaryobjection. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in Buyerconnection with Xxxxx’s reasonable discretion, then, notwithstanding any other term or provision activities pursuant to this Section 16 (“Due Diligence Costs”) in an amount not to exceed the Due Diligence Cap; provided that such Due Diligence Cap shall not apply upon the occurrence of this Agreement, Buyer will have no duty or obligation an Event of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyDefault.

Appears in 1 contract

Samples: Master Repurchase Agreement (Horton D R Inc /De/)

Due Diligence. Seller acknowledges that Buyer, through a designated third party (a) the “Buyer Diligence Designee”), and Buyer’s regulators, have the right to perform continuing due diligence reviews with respect to the Mortgage Loans and Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice unless an Event of Default shall have occurred, in which case no notice is required, to Seller, the Buyer Diligence Designee will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Seller or Custodian. Seller also shall make available to the Buyer Diligence Designee a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Purchased -48- LEGAL02/41080625v5 LEGAL02/41080625v8 Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, through the Buyer Diligence Designee, have the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Xxxxxx agrees to cooperate with Xxxxx and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller SubsidiaryCustodian. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with activities pursuant to this Section 17 (“Due Diligence Costs”); provided, however, that Seller shall not be responsible for Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any Due Diligence Costs in excess of the transactions contemplated Due Diligence Cap per year or any Due Diligence Costs incurred in connection with the initial due diligence conducted by this Agreement, including Buyer prior to the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydate hereof.

Appears in 1 contract

Samples: Master Repurchase Agreement (loanDepot, Inc.)

Due Diligence. Buyer, or its designees, will have a period of thirty (a30) days after Seller's execution of this Agreement (the "Due Diligence Period"), to enter the Property to make inspections, engineering tests, surveys, and other such tests, examinations and inspections as Buyer may desire as long as such tests, examinations, etc., do not unreasonably interfere with the operations or any current use of the Property. All entry upon the Property and any and all contact with on site employees of Seller covenants by Buyer shall be upon prior notice to Seller and, at Seller's option, accompanied by an agent of Seller. Requests for entry upon the property or to contact any employees of Seller shall be initiated only through James Duberstein or Joseph M. Jayxxx xxx xxxxx xx conxxxxxx xx xxxxxx conformance with the restrictions in this Agreement and specifically this Section 3 and Section 8(d). If the Closing of the Property does not occur, Buyer shall restore the Property to the same condition as prior to any entry by Buyer. All due diligence materials previously submitted to Buyer must be maintained by Buyer or its attorneys or agents on a confidential basis and returned to Seller if Buyer terminates this Agreement. Buyer agrees that it will not use the Due Diligence materials for any purpose other than to determine whether to acquire the Property and agrees that it will not make contact with Seller's tenants unless closing occurs. In addition, Buyer agrees that it will under no circumstances make any offer, or use the Due Diligence materials, to all acquire the interest of any partner(s) of the terms and provisions set forth in this Section 5.2(a). Between selling entities or the current fee owner or its affiliates for a period of two (2) years after the date of this Agreement and the Effective TimeContract. Buyer and/or its agents will not, in addition under any circumstances, disclose to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records any of Seller and Seller's employees that it is contemplating acquisition of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business Property without Seller's written consent prior to closing. Buyer will make no contact with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review any of Seller, the Seller Subsidiary 's employees without Seller's express written consent; except for contacts with Seller's employees allowed under Section 8(d) and the Seller Business as Buyer except for contacts within three (3) days of closing in its sole connection with takeover and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller closing arrangements. Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review All third party reports desired by Buyer will be ordered by Buyer at Buyer’s sole 's expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment agrees that it will supply copies to Seller of any damages or penaltyeach and every report upon receipt.

Appears in 1 contract

Samples: Real Estate Purchase Agreement (Realmark Property Investors Limited Partnership Vi-B)

Due Diligence. (a) Seller covenants and agrees to all of acknowledges that Buyer has the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such continuing due diligence review reviews with respect to the Purchased Assets, for purposes of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, verifying compliance with the assistance representations, warranties and specifications made hereunder, or determining or re-determining the Asset Base Component for purposes of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision Section 4 of this Agreement, Buyer will have no duty or obligation of otherwise, and Seller agrees that Buyer, at its option, has the right at any kind time to conduct a partial or nature whatsoever to proceed with complete due diligence review on any or to consummate any all of the transactions contemplated Purchased Assets, including, without limitation, ordering new credit reports and Appraisals on the applicable collateral (subject to Section 12(g)(vi)) and otherwise regenerating the information used to originate such Purchased Assets. Upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to any Purchased Asset in the possession or under the control of Seller, any servicer or sub-servicer and/or Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Asset Files, the Servicing Records and the Purchased Assets. Seller agrees to reasonably cooperate with Buyer and any third party underwriter designated by this AgreementBuyer in connection with such underwriting, including including, but not limited to, providing Buyer and any third party underwriter with reasonable access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the Mergerpossession, or under the control, of such Seller. Seller agrees to negotiate revised terms, provisions or conditions reimburse Buyer for any and all reasonable attorneys’ fees, out-of-pocket costs and expenses incurred by Buyer in connection with continuing due diligence on Eligible Assets and Purchased Assets, including, without limitation, the cost of annual updated Appraisals on the transactions contemplated by this Agreement, including the Merger, Mortgaged Properties and Buyer may terminate this Agreement without payment of any damages or penaltyDiligence Fees.

Appears in 1 contract

Samples: Bailee Agreement (TPG RE Finance Trust, Inc.)

Due Diligence. (a) Seller covenants and agrees to all of the terms and provisions set forth in this Section 5.2(a)SECTION 5.2. Between the date of this Agreement and the Effective TimeDecember 15, 2000, in addition to Buyer’s 's rights provided by Section SECTION 5.1(a)) hereof, Buyer, acting through Buyer’s 's own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of all of the Seller SubsidiaryOther Acquired Companies, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary Other Acquired Companies and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary Other Acquired Companies and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including including, without limitation, a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller and/or the Other Acquired Companies. Buyer’s 's representatives and agents, with the assistance of Seller’s 's personnel and the personnel of the Seller SubsidiaryOther Acquired Companies, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller SubsidiaryOther Acquired Companies. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s 's representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s 's sole expense, except that Seller shall make Seller’s 's and the Seller Subsidiary’s Other Acquired Companies' employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s 's reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or and/or to consummate any of the transactions contemplated by this Agreement, including including, without limitation, the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including including, without limitation, the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Ubrandit Com)

Due Diligence. (a) Seller The Sellers acknowledge that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and the Sellers, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Sellers agree that upon reasonable prior notice unless an Event of Default shall have occurred, in which case no notice is required, to the Sellers, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Sellers and/or the Custodian. The Sellers also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, the Sellers acknowledge that Buyer may purchase Mortgage Loans from the Sellers based solely upon the information provided by the Sellers to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Sellers agree to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Sellers. The Sellers further agree that the Sellers shall pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 5.2(a27 (“Due Diligence Costs”). Between the date ; provided, that such Due Diligence Costs shall not exceed $20,000 per calendar year unless a Default or Event of this Agreement and the Effective TimeDefault shall have occurred, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, which event Buyer shall have the full right to (a) examine perform due diligence, at the offices, properties, equipment, invoices, customer records, agreement books and records sole expense of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related Sellers without regard to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydollar limitation set forth herein.

Appears in 1 contract

Samples: Master Repurchase Agreement (MortgageIT Holdings, Inc.)

Due Diligence. (a) Each Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, the Underlying Transactions, the TPO Mortgage Loans and the Sellers, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller agrees that upon reasonable prior notice (unless an Event of Default shall have occurred, in which case no notice is required) to the Sellers, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files, the Underlying Transactions or TPO Mortgage Loans and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Sellers and/or the Custodian. The Sellers also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files, Mortgage Loans, the Underlying Transactions and the TPO Mortgage Loans.. Without limiting the generality of the foregoing, each Seller acknowledges that Buyer may purchase Mortgage Loans, the Underlying Transactions and TPO Mortgage Loans from the Sellers based solely upon the information provided by the Sellers to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans, the Underlying Transactions and/or TPO Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan, Underlying Transaction or TPO Mortgage Loan. Buyer may underwrite such Mortgage Loans, Underlying Transaction or TPO Mortgage Loan itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Sellers agree to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans, the Underlying Transactions and TPO Mortgage Loans in the possession, or under the control, of the Sellers. The Sellers further agree that the Sellers shall pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 5.2(a17 (“Due Diligence Costs”). Between ; provided, that such Due Diligence Costs shall not exceed the date Due Diligence Cap per calendar year unless a Default or Event of this Agreement Default shall have occurred and the Effective Timebe continuing, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, which event Buyer shall have the full right to (a) examine perform due diligence, at the offices, properties, equipment, invoices, customer records, agreement books and records sole expense of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related Sellers without regard to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydollar limitation set forth herein.

Appears in 1 contract

Samples: Master Repurchase Agreement (New Century Financial Corp)

Due Diligence. (a) Seller covenants Subject to the rights of tenants at the Property, Purchaser and agrees any representatives designated by Purchaser may, at Purchaser’s expense, at reasonable times and upon reasonable prior notice to all Seller, to the extent reasonably necessary in connection with the purchase of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective TimeProperty, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine inspect any documents and materials related to the officesProperty which are in the possession of Seller, propertiesexcept as excluded as provided below (collectively, equipmentthe “Evaluation Materials”) on the express condition that Purchaser agrees to treat the Evaluation Materials confidential, invoicesas provided in this Agreement, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss inspect the Seller Business and the operations, history and prospects Real Property (provided that such inspections of the Real Property shall be non-invasive except to the extent approved in writing by Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary discretion) (collectively, “Inspections”). Purchaser acknowledges and agrees that the Evaluation Materials are being provided by Seller as an accommodation to Purchaser and without representation, recourse or appropriate, including a due diligence review warranty by Seller as to the accuracy or completeness thereof or the suitability of the Contractsinformation contained therein for any purpose whatsoever, assetsunless otherwise expressly set forth in this Agreement. All actions taken by or on behalf of Purchaser shall be in accordance with all applicable laws, rightsrules and regulations of the appropriate governmental authorities having jurisdiction over the Real Property. In addition, liabilities subject to the rights of tenants at the Property, Purchaser shall have the right to interview the tenants under the Leases, during reasonable business hours and Intellectual Property upon not less than three (3) Business Days’ prior notice to Seller, provided, however, that Seller shall have the right, but not the obligation, to have a representative of Seller . Buyeraccompany Purchaser or Purchaser’s representatives on such tenant interviews. Seller and agentsPurchaser agree to reasonably cooperate with each other in scheduling such interviews. Purchaser shall (A) not interfere with the use of the Real Property by the tenants under the Leases, (B) restore the Real Property to the condition which existed immediately prior to each of the Inspections, (C) defend and indemnify Seller, its partners and affiliates, and each of their officers, directors, agents and employees, from and against any and all liability, loss, cost, expense and damage (including, without limitation, reasonable attorneys’ fees) incurred by any of them in connection with the Inspections, (D) provide Seller, promptly after receipt, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related written reports, tests and other written information regarding the Inspections, and (E) prior to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a groupcondition to any Inspections, deliver to Seller certificates of insurance evidencing comprehensive liability insurance (including coverage for contractual indemnities) with a combined single limit of at least $2,000,000, in a form reasonably acceptable to Seller, and naming Seller as an additional insured. The due diligence review Notwithstanding the foregoing, Seller shall not be required to disclose or deliver to Purchaser (i) any evidence of terms relating to the acquisition of the Property by Buyer will be at BuyerSeller; (ii) the valuation of the Property performed by or on behalf of Seller, including any appraisals of the Property; (iii) the terms of any financing relating to the Property; (iv) any information generated by or on behalf of Seller regarding the value of the Property for Seller’s sole expenseinternal purposes; (v) any materials or reports generated or produced by or on behalf of Seller in connection with its acquisition or financing of the Property, except for that Seller shall make Seller’s certain Report of Phase I Environmental Site Assessment for the Property prepared by Law Engineering and the Seller Subsidiary’s employeesEnvironmental Services, representativesInc. of Addison, officers and accountants available Texas dated August 20, 2002 as Project No. 30440-2-0771-09-917 which has been delivered to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review Purchaser; or meetings (vi) any information or reports that are not entirely satisfactory attorney-client or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltywork product doctrine privileged.

Appears in 1 contract

Samples: Real Estate Sale Agreement (Behringer Harvard Opportunity REIT I, Inc.)

Due Diligence. Each Seller acknowledges that Buyer or any third party designated by Buyer (aincluding Buyer’s regulators) has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and each Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller agrees that upon reasonable prior notice unless an Event of Default shall have occurred and be continuing, in which case no notice is required, to such Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of such Seller. Each Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, each Seller acknowledges that Buyer may purchase Mortgage Loans from Sellers based solely upon the information provided by Sellers to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of either Seller. Each Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform further agrees that such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of pay all documents related to the Seller Business that Buyer reasonably requests. Buyer out-of-pocket costs and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 17 (“Due Diligence Costs”).

Appears in 1 contract

Samples: Master Repurchase Agreement (Impac Mortgage Holdings Inc)

Due Diligence. Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, the Seller Party, Settlement Agents, Approved Investors and other parties which may be involved in or related to Transactions (acollectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Seller Party agrees that upon reasonable (but not less than three (3) Business Days) prior notice to the Seller Party, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Seller Party. The Seller Party will use commercially reasonable efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Provided that no Event of Default has occurred and is continuing, Buyer agrees that it shall exercise best efforts, in the conduct of any such due diligence, to minimize any disruption to Seller’s normal course of business. The Seller Party shall also make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans and, once Seller Party and Buyer establish mutually agreeable procedures for the handling and use by Buyer of Seller’s confidential beneficial ownership information, Seller Party shall ensure that Buyer has sufficient information relating to Seller’s beneficial ownership for purposes of Buyer’s compliance with 31 C.F.R. § 1010.230. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with reasonable access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Seller. Seller Party further agrees to pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 5.2(a17 (the “Due Diligence Costs”). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights ; provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer be responsible for any reason whatsoever, as determined by Buyer Due Diligence Costs in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any excess of the transactions contemplated by this AgreementDue Diligence Cap; provided, including however, that the Merger, Due Diligence Cap shall not apply upon the occurrence of a Default or to negotiate revised terms, provisions or conditions for any Event of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyDefault.

Appears in 1 contract

Samples: Master Repurchase Agreement (Rocket Companies, Inc.)

Due Diligence. Purchasers, Agent, Verification Agent or any of their respective agents, representatives or permitted assigns upon reasonable prior notice and during normal business hours, shall (ax) have the right once per year to conduct inspection and perform onsite due diligence reviews of Seller covenants and agrees its directors, officers and employees, including, without limitation, Seller’s financial condition and performance of its obligations under the Program Documents (“Onsite Diligence”), and (y) have the right to all conduct inspection and perform continuing due diligence reviews of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement Servicing File and the Effective TimePurchased Assets. Seller agrees promptly to provide Purchasers, Agent, Verification Agent and their respective agents with access to, copies of and extracts from reasonably requested documents, records, agreements, instruments or information (including, without limitation, any of the foregoing in addition computer data banks and computer software systems) relating to BuyerSeller’s rights respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. In addition, Seller shall also make available to Purchasers, Verification Agent and/or Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the purpose of answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Purchasers shall enter into transactions with Seller based solely upon the information provided by Section 5.1(a)Seller to Purchasers, BuyerVerification Agent and/or Agent and the representations, acting through Buyer’s own personnelwarranties and covenants contained herein, legal counseland that Purchasers and/or Agent, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the Seller Subsidiaryindividual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchasers, (b) meet Verification Agent and/or Agent shall not reduce or limit the Seller’s representations, warranties and discuss covenants set forth herein. Notwithstanding anything to the Seller Business contrary contained above, Purchaser shall have the right at any time to conduct inspection and diligence of the Purchased Assets and Assets proposed to be sold hereunder, and the operationsloan and servicing files relating thereto from time to time as requested by the Purchaser. Seller agrees to reimburse Purchasers, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such Verification Agent and/or Agent for all reasonable out-of-pocket due diligence review of Seller, costs and expenses (including without limitation the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide Onsite Diligence) incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 36.

Appears in 1 contract

Samples: Master Repurchase Agreement (Caliber Home Loans, Inc.)

Due Diligence. Purchaser, Agent, Verification Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (ax) Seller, Guarantor, and any of their Affiliates, directors, officers, employees and significant shareholders, including, without limitation, their respective financial condition and performance of its obligations under the Program Documents, and (y) the Servicing File and the Purchased Assets. Seller covenants agrees promptly to provide Purchaser, Agent, Verification Agent and agrees to their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller’s business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to Purchaser, Agent and/or Verification Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the date purpose of this Agreement answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to Purchaser and/or Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that Purchaser, acting through Buyer’s own personnelAgent and/or Verification Agent, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the Seller Subsidiary, (b) meet and discuss individual Mortgage Loans at the Seller Business and the operations, history and prospects expense of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise Seller. Verification Agent shall also perform such any additional due diligence review of as instructed by Agent. Any such diligence conducted by Purchaser, Agent and/or Verification shall not reduce or limit the Seller’s representations, the warranties and covenants set forth herein. Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriateagrees to reimburse Purchaser, including a Agent and/or Verification Agent for all reasonable out-of-pocket due diligence review of the Contracts, assets, rights, liabilities costs and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide expenses incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 36.

Appears in 1 contract

Samples: Master Repurchase Agreement (Home Loan Servicing Solutions, Ltd.)

Due Diligence. (a) Each Seller acknowledges that the Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and the Sellers, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller agrees that upon reasonable prior notice (unless an Event of Default shall have occurred, in which case no notice is required) to the Sellers, the Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Sellers and/or the Custodian. The Sellers also shall make available to the Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, each Seller acknowledges that the Buyer may purchase Mortgage Loans from the Sellers based solely upon the information provided by the Sellers to the Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that the Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. The Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Sellers agree to cooperate with the Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing the Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Sellers. The Sellers further agree that the Sellers shall pay all out-of-pocket costs and expenses incurred by the Buyer in connection with the Buyer’s activities pursuant to this Section 5.2(a17 (“Due Diligence Costs”). Between ; provided, that such Due Diligence Costs shall not exceed the date Due Diligence Cap per calendar year unless a Default or Event of this Agreement Default shall have occurred and the Effective Timebe continuing, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, which event the Buyer shall have the full right to (a) examine perform due diligence, at the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and sole expense of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related Sellers without regard to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydollar limitation set forth herein.

Appears in 1 contract

Samples: Master Repurchase Agreement (New Century Financial Corp)

Due Diligence. (a) Seller covenants and agrees to all allow Buyer, Buyer’s agent and representatives reasonable access to the Property (to be coordinated with Seller’s personnel or its agent, during business hours) during the period commencing on the Effective Date hereof and extending to the Closing, (“the Due Diligence Period”) for purposes of any non-intrusive physical and environmental inspection of the terms Property and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the ContractsLeases, assetsexpenses and other due diligence matters (the "Due Diligence Inspections"). Buyer shall not conduct or allow any physically intrusive testing of, rights, liabilities on or under the Property (other than sampling building materials for asbestos or lead content and Intellectual Property of Seller . other testing required by Buyer’s representatives and agents, with the assistance of financing source) without first obtaining Seller’s personnel and the personnel of the Seller Subsidiarywritten consent, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller which consent shall promptly provide to Buyer copies of all documents related not be unreasonably withheld, conditioned or delayed as to the Seller Business that Buyer reasonably requeststiming and scope of work to be performed. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision Upon execution of this Agreement, Seller will cause to be made available to Buyer will have no duty for inspection the following information to the extent available to Seller or obligation its agents concerning the Property and its operation which Buyer, Buyer’s financing source, or their respective representatives shall reasonably request: all documents referred to in this Agreement; the Service Contracts; copies of all permits, licenses or governmental approvals necessary for, or convenient to, the operation of the Property; copies of all guarantees and warranties; copies of all environmental audits or reports, soils reports and engineered foundation reports; any geophysical records, data or reports; reports of any kind engineers or nature whatsoever experts as they relate to proceed with the coal or to consummate other minerals regarding the Property in Seller’s files, possession or control; surveys; and any other information requested by Buyer, Buyer’s financing source, or their respective representatives. If Buyer is reasonably satisfied that the results of the transactions contemplated by Due Diligence Inspections indicate a material decrease in the value or use of the Property of which Buyer was not previously aware, Buyer shall have the right to terminate this Agreement. This Agreement shall terminate if Buyer sends written notice to Seller setting forth the issue discovered pursuant to the Due Diligence Inspections on or before 5:00 p.m. (Denver, Colorado time) of the 30th day after the Effective Date. If Buyer does provides such notice, this Agreement shall be terminated unless the parties mutually agree on a resolution of the issues, and the parties shall be relieved of all further obligations hereunder. For purposes of this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltymaterial decrease shall mean more than Three Hundred Thousand Dollars ($300,000.00).

Appears in 1 contract

Samples: Real Estate Purchase Agreement (Evergreen Energy Inc)

Due Diligence. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans, Seller, and each Servicer, including, without limitation, financial information, organization documents and purchase agreements for each pool of Purchased Mortgage Loans (to the extent not covered by confidentiality agreements), for purposes of verifying compliance with the representations, warranties and specifications made hereunder, to review the servicing of the Purchased Mortgage Loans, or otherwise, and Seller agrees that (a) upon reasonable prior notice to Seller, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its Authorized Representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer promptly , an electronic copy via email to ***, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Purchased Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller and enter into additional Transactions with respect to the Purchased Mortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Mortgage Loans purchased in a Transaction, including, without limitation, ordering new credit reports and provisions set forth new appraisals on the related Mortgaged Properties with respect to the Purchased Mortgage Loans and otherwise re-generating the information used to originate such Purchased Mortgage Loan, which information may be used by Buyer to calculate Market Value. Buyer may underwrite such Purchased Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer or any third party underwriter in this Section 5.2(a). Between the date of this Agreement and the Effective Timeconnection with such underwriting, in addition including, but not limited to, providing Buyer with access to Buyer’s rights provided by Section 5.1(a)any documents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of due diligence activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 20.

Appears in 1 contract

Samples: Master Repurchase Agreement and Securities Contract (loanDepot, Inc.)

Due Diligence. Once during each calendar year (a) Seller covenants commencing in 2010), at such times during normal business hours as are reasonably convenient to the Borrower or the Servicer, as the case may be, at the sole cost and agrees expense of the Servicer and upon reasonable request of the Administrative Agent and prior written notice to the Borrower or the Servicer, as the case may be, the Borrower or the Servicer, as the case may be, shall permit such Person or Persons as the Administrative Agent may designate to conduct, on behalf of all of them, audits or to visit and inspect any of the terms properties of the Borrower or the Servicer (including any Subservicer) where the Receivable Files are located, as the case may be, to examine the Receivable Files, internal controls and provisions set forth in this Section 5.2(a). Between procedures maintained by the date Borrower or Servicer, as the case may be, and take copies and extracts therefrom, and to discuss the affairs of this Agreement the Borrower and the Effective TimeServicer (including any Subservicer) with their respective officers and employees (which employees, in addition to Buyer’s rights provided by Section 5.1(a)except after the occurrence and during the continuation of a Termination Event, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agentsUnmatured Termination Event or Servicer Termination Event, shall have be designated by the full right Borrower or the Servicer, as the case may be) and, upon written notice to (a) examine the officesBorrower or the Servicer, propertiesas the case may be, equipmentindependent accountants; provided, invoicesfurther, customer recordsthat after the occurrence and during the continuation of a Termination Event, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of SellerUnmatured Termination Event or Servicer Termination Event, the Seller Subsidiary and the Seller Business as Buyer in Administrative Agent or its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet take the foregoing actions without being subject to any limitation on the number of audits, visits or inspections that may be conducted during a calendar year and such audits, visits or inspections shall be at the sole cost and expense of the Servicer; provided, that the Administrative Agent and its representatives shall make reasonable efforts to coordinate, and provide 30 days’ prior written notice of, such audits, visits and inspections. The Borrower or the Servicer, as the case may be, hereby authorizes such officers, employees and independent accountants (and the Servicer shall cause each Subservicer to authorize such officers, employees and independent accountants) to discuss with representatives the Administrative Agent and employees its representatives, the affairs of Seller individually the Borrower or the Servicer, as the case may be. The Servicer shall reimburse the Administrative Agent for all reasonable fees, costs and expenses incurred by or on behalf of the Administrative Agent and the Secured Parties in connection with the foregoing actions promptly upon receipt of a written invoice therefor. Any audit provided for herein shall be conducted in accordance with the rules of the Borrower and Servicer respecting safety and security on its premises and without materially disrupting operations. Nothing in this subsection shall affect the obligation of the Servicer to observe any Applicable Law prohibiting the disclosure of information regarding the Obligors, and the failure of the Servicer to provide access to information as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results result of such due diligence review or meetings are obligation shall not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision constitute a breach of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltysubsection.

Appears in 1 contract

Samples: Credit Agreement (Santander Holdings USA, Inc.)

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Due Diligence. Buyer will have until the expiration of the 20th day after delivery of the signed Agreement (a) Seller covenants the "Review Period"), to conduct all of its inspections and due diligence and satisfy itself regarding title to the Property, and to inspect the Property. Buyer agrees to all indemnify and hold harmless for any loss or damage to the Property or persons caused by Buyer or its agents arising out of such physical inspections of the terms Property. Buyer expressly acknowledges that the sale of the Property as provided for herein is made on an "AS IS" basis, and provisions such provision shall survive closing. Buyer may cancel this agreement for ANY REASON in its sole discretion by delivering a cancellation notice by certified mail, return receipt requested, or by personal delivery to Seller and escrow holder before the expiration of the Review Period. If this Agreement is not canceled as set forth in herein, the First Payment shall be non-refundable unless Seller shall default hereunder. If Buyer cancels this Agreement as permitted under this Section 5.2(a). Between or Section 16, except for any title insurance and/or escrow cancellation fees of the date escrowee which will be paid by the Buyer, and any liabilities under sections 15(a)(iii) and 16(b) of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a(which will survive), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have Buyer (after execution of such documents reasonably requested by Seller to evidence the full right to (atermination hereof) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives returned its First Payment, and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have absolutely no duty rights, claims or obligation interest of any kind type in connection with the Property or nature whatsoever to proceed with this transaction, regardless of any alleged conduct by Seller or to consummate anyone else. Unless Seller shall be in default of any of the transactions contemplated by this Agreement, including the Mergerobligation hereunder, or this Agreement is canceled by Buyer pursuant to negotiate revised termsthe terms hereof, provisions or conditions for any of if Buyer fails to make the transactions contemplated by this AgreementSecond Payment, including Seller shall be entitled to retain the Merger, First Payment and Buyer may terminate irrevocably will be deemed to have canceled this Agreement without payment and relinquish all rights in and to the Property. If this Agreement is not canceled and the Second Payment is made when required, all of any damages or penaltyBuyer's conditions and contingencies will be deemed satisfied.

Appears in 1 contract

Samples: Purchase Agreement (Aei Real Estate Fund Xvi LTD Partnership)

Due Diligence. (a) Seller covenants The Fee Qualifying Properties are transferred AS IS, without any representations or warranties, expressed or implied, subject to permitted title exceptions and to the releases set forth in and, if applicable, the Environmental Indemnity Agreement described in paragraph 2.3(f). Buyer acknowledges and agrees that it is relying solely upon its own investigations of the Fee Qualifying Properties. Commencing on the Offering Date, Buyer shall have forty-five (45) days (the "Due Diligence Period"), subject to extension as expressed in this paragraph 2.3(a) and in paragraph 2.3(b), to physically inspect all of the terms Fee Qualifying Properties then offered and provisions set forth conduct and review its studies and investigations (the "Pertinent Reports") as to environmental, and material physical and structural condition. Except as expressly otherwise provided in this Section 5.2(a)Agreement, expenses associated with Buyer's due diligence shall be borne by Buyer. Between Inspections of Leased Qualifying Properties shall be governed solely by the date provisions of Article 3 of this Agreement and Agreement. Seller's files relating to all Fee Qualifying Properties will be made available to Buyer upon the Effective TimeOffering Date at locations designated by Seller. The files will contain all pertinent information in Seller's possession (or the possession of Seller's property manager) relating to the Fee Qualifying Properties, in addition to Buyer’s rights provided by Section 5.1(a)including, Buyerwithout limitation, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer copies of any available real estate tax records, agreement books operating expense data, title reports and records policies, surveys, environmental studies and reports, appraisals, municipal notices and Permitted Leases, but Seller does not represent or warrant the completeness or accuracy of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence information. If Buyer desires an on-site review of Seller's files, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, dates therefor will prepare an inventory of all assets and other Intellectual Property of be established mutually by Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 1 contract

Samples: Master Purchase, Sale and Lease Transfer Agreement (American Financial Realty Trust)

Due Diligence. Seller acknowledges that Buyer or any third party designated by Buyer (aincluding Buyer’s regulators) has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice unless an Event of Default shall have occurred and be continuing, in which case no notice is required, to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Seller or Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re‑generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Xxxxxx agrees to cooperate with Xxxxx and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller SubsidiaryCustodian. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Sellerpay all reasonable and documented out-of-pocket costs and expenses incurred by Xxxxx and Custodian in connection with Buyer’s and the Seller Subsidiary’s employees, representatives, officers and accountants available activities pursuant to this Section 17 subject to a cap with respect to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer [***]for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding [***]period (“Due Diligence Costs”); provided that the Due Diligence Cap shall not apply at any other term or provision of this Agreement, Buyer will time that a Default shall have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, occurred and Buyer may terminate this Agreement without payment of any damages or penaltybe continuing.

Appears in 1 contract

Samples: Master Repurchase Agreement (Home Point Capital Inc.)

Due Diligence. Buyer, or its designees, will have a period of thirty (a30) days after Seller's execution of this Agreement (the "Due Diligence Period"), to enter the Property to make inspections, engineering tests, surveys, and other such tests, examinations and inspections as Buyer may desire as long as such tests, examinations, etc., do not unreasonably interfere with the operations or any current use of the Property. All entry upon the Property and any and all contact with on site employees of Seller covenants by Buyer shall be upon prior notice to Seller and, at Seller's option, accompanied by an agent of Seller. Requests for entry upon the property or to contact any employees of Seller shall be initiated only through James Duberstein or Joseph M. Jaysox xxx xxxxx xx xonduxxxx xx xxxxxx xonformance with the restrictions in this Agreement and specifically this Section 3 and Section 8(d). If the Closing of the Property does not occur, Buyer shall restore the Property to the same condition as prior to any entry by Buyer. All due diligence materials previously submitted to Buyer must be maintained by Buyer or its attorneys or agents on a confidential basis and returned to Seller if Buyer terminates this Agreement. Buyer agrees that it will not use the Due Diligence materials for any purpose other than to determine whether to acquire the Property and agrees that it will not make contact with Seller's tenants unless closing occurs. In addition, Buyer agrees that it will under no circumstances make any offer, or use the Due Diligence materials, to all acquire the interest of any partner(s) of the terms and provisions set forth in this Section 5.2(a). Between selling entities or the current fee owner or its affiliates for a period of two (2) years after the date of this Agreement and the Effective TimeContract. Buyer and/or its agents will not, in addition under any circumstances, disclose to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records any of Seller and Seller's employees that it is contemplating acquisition of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business Property without Seller's written consent prior to closing. Buyer will make no contact with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review any of Seller, the Seller Subsidiary 's employees without Seller's express written consent; except for contacts with Seller's employees allowed under Section 8(d) and the Seller Business as Buyer except for contacts within three (3) days of closing in its sole connection with takeover and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller closing arrangements. Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review All third party reports desired by Buyer will be ordered by Buyer at Buyer’s sole 's expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment agrees that it will supply copies to Seller of any damages or penaltyeach and every report upon receipt.

Appears in 1 contract

Samples: Real Estate Purchase Agreement (Realmark Property Investors Limited Partnership Vi-B)

Due Diligence. (a) Seller covenants and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between Beginning on the date of this Agreement and continuing until September 10, 2003 (the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a"Due Diligence Period"), Buyer (and any agents and consultants retained by Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, ) shall have the full right at such reasonable times as Buyer and the Sellers may determine to (a) examine and inspect the Property, to investigate the condition of title, zoning, value and usefulness of the Property, to review and examine the officesPartnership's financial statements, propertiesbooks and records related to the Property (including maintenance thereof) and the operation of the Property, equipmentand to determine the suitability of the Property for the use and further development contemplated by Buyer. It is anticipated that during this period Buyer, invoicesboth directly and through its agents and consultants, customer recordsincluding its structural engineer ("Buyer's Engineer"), agreement will at such reasonable times and such reasonable manner as Buyer and Sellers may determine conduct physical examinations of the Property (including improvements thereto and facilities thereon, and also including environmental review, soil and ground water sampling, including ground penetrations required therefor, and any material and structural testing required to evaluate and inspect the improvements on the Property), and will examine the condition of title, zoning and the value of the Property. Buyer shall also have the right, during this period and at Buyer's expense, to obtain a current or updated survey of the Property. It is understood that Buyer and its agents and consultants shall have access to the Property and all books and records of Seller the Partnership, in each case, at such reasonable times as Buyer and Sellers may determine, for the purpose of conducting its investigation. It shall be a condition of Closing and of Buyer's obligations to purchase the Seller SubsidiaryProperty that Buyer, in its sole discretion, has approved the physical condition of the Property (including without limitation its environmental condition) and the condition of title and zoning, and has determined that the use, operation and development limitations and opportunities of the Property are reasonably satisfactory to Buyer (such conditions are referred to herein as the "Due Diligence Conditions"). Buyer shall have the right to notify Sellers in writing at any time prior to the expiration of the Due Diligence Period that the Due Diligence Conditions are not satisfied, in which event this Agreement shall automatically be terminated with no further liability of either party hereunder except as otherwise expressly provided in this Agreement. Notwithstanding the foregoing, (a) Buyer shall have no right to so notify Sellers that the Due Diligence Conditions are not satisfied unless the written report of Buyer's Engineer (the "Engineer's Report") delivered to Buyer and Sellers on or prior to the Closing Date has disclosed defects or problems with the physical condition of the Property which require at least, in any individual case or in the aggregate, $375,000 (the "Minimum Defects Amount") to remedy same (herein, "Material Physical Condition Defects") (exclusive of, and without regards to, for purposes of this calculation, each and every individual defect or problem relating to such physical condition less than $5,000), and (b) meet notwithstanding the existence of Material Physical Condition Defects, Buyer shall still not have the right to so notify Sellers that the Due Diligence Conditions are not satisfied on account thereof if Sellers deposit into escrow, pursuant to the terms of the Escrow Agreement substantially in the form of Exhibit C hereto (the "Structural Escrow Agreement"), an amount not to exceed $375,000 to be used to remedy the Material Physical Condition Defects in excess of the Minimum Defects Amount as reasonably specified in the Engineer's Report, upon the terms and discuss conditions more particularly set forth in the Seller Business Structural Escrow Agreement, upon which the Due Diligence Conditions shall be deemed satisfied. Should, however, Buyer fail to so notify Sellers as aforesaid by the end of the Due Diligence Period, the Property shall be deemed satisfactory and the operationsDue Diligence Conditions set forth herein shall be deemed satisfied. In connection with the foregoing, history Buyer shall not communicate with employees of Tech Industries, Inc., other than Xxxxx X. Xxxxxx and prospects Xxxxxxx Xxxx, without the prior written consent of Sellers, and Sellers shall have the right to have a representative present (who shall be either Xxxxx X. Xxxxxx or Xxxxxxx Xxxx) at and to participate in any meetings, telephone discussions or other forms of communication between Buyer and any employee or other third party (including governmental agencies) with respect to the Property. Buyer agrees that it will indemnify and hold Sellers harmless from and against all damage to persons or property and all related actions, claims, penalties, damages and expenses, including reasonable attorneys fees and court costs, based upon or arising out of the Seller Business activities of Buyer and its agents and consultants or any of their respective inspectors, contractors, or affiliates while on or about the Property or the land adjacent thereto. Buyer agrees that all information in connection with representatives the above-referenced inspections, examinations or tests shall be kept confidential by Buyer and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Sellerits inspectors, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriateconsultants, including a due diligence review of the Contractscontractors, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel investors, lenders, and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related affiliates except to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review extent otherwise required by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyapplicable law.

Appears in 1 contract

Samples: Equity Purchase Agreement (Portola Packaging Inc)

Due Diligence. (a) Seller covenants Following notice that Eton Park intends to exercise its purchase option, Eton Park and agrees to all of the terms its agents shall be provided reasonable access to, and provisions set forth in this Section 5.2(a). Between the date of this Agreement full information with respect to, Holdings’ and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants its subsidiaries’ books and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books products, premises, and records personnel for the purpose of Seller completing Eton Park’s due diligence investigation of Holdings’ business. Holdings further agrees that it shall authorize and of direct the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives appropriate managers and employees of Seller Holdings and its subsidiaries to assist Eton Park in, and Eton Park is authorized to, contact prior to the Seller Subsidiary closing and without the prior consent of Holdings, any landlord, customer, supplier, distributor or other material business relation of Holdings. All confidential and proprietary information obtained by Eton Park and its agents during the course of such investigation will be maintained by Eton Park and its agents on a confidential basis. Confidentiality: Prior to the execution of definitive documentation, neither Holdings nor Eton Park will, without first obtaining the approval of the other, make any public announcement, directly or indirectly, regarding the Asset Sale, nor disclose the existence of this Summary of Terms or the nature of the Asset Sale to any person except as required by law or regulatory bodies and other than to the respective principals or other representatives of Holdings and Eton Park, each of whom shall be similarly bound by such confidentiality obligations. EXHIBIT D MANAGEMENT BONUS POOL At such time as the Holders have received (i) repayment of the Overture Advance and (cii) otherwise perform such due diligence review repayment of Seller, any Obligations consisting of costs and expenses (including attorneys fees and expenses) incurred at any time by the Seller Subsidiary and the Seller Business as Buyer Holders in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, connection with the assistance of Seller’s personnel negotiation and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision preparation of this Agreement, Buyer will have no duty or obligation the Second Lien Documents, all documents drafted in connection the proposed restructuring of the Company’s Obligations that preceded the parties’ entry into this Agreement and any costs and expenses that may be incurred by the Holders in respect of any kind further modification, amendments, restructuring, “workout”, or nature whatsoever exercise of remedies in relation to proceed with this Agreement or to consummate any Second Lien Documents, the Holders shall deposit 5% of the transactions contemplated next $20 million received by this Agreement, including them as repayment on the Merger, or to negotiate revised terms, provisions or conditions for any Notes (exclusive of the transactions contemplated repayment of the amounts described in clauses (i) and (ii) above) with an escrow agent for the benefit of Company management. The escrowed funds will be released to an account designated by this Agreementthe Company at such time as the Holders have received aggregate payments (exclusive of the repayment of the amounts described in clauses (i) and (ii) above) on the Notes of $21 million (“Release Date”) and shall be utilized by the Company for the sole purpose of issuing performance bonuses to those members of the Company’s management that have been approved by the Holders. If the Release Date has not occurred by [____ __, including 2010], the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.escrow corpus will revert back to the Holders. EXHIBIT E [FORM OF A&R NOTE] [See attached] EXHIBIT F [FORM OF AMENDED & RESTATED FILM SPE OPERATING AGREEMENT] [See attached] ANNEX I TO FORBEARANCE AGREEMENT AND AMENDMENT NO. __ TO SECURITIES PURCHASE AGREEMENT STIPULATED DEFAULTS

Appears in 1 contract

Samples: Forbearance Agreement (Film Department Holdings, Inc.)

Due Diligence. (a) Seller covenants acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of Seller, Primary Servicer and any other servicer or sub-servicer and/or the Custodian. Seller agrees to reimburse Buyer for any and all reasonable out of pocket costs and expenses incurred by Buyer with respect to continuing due diligence on the Purchased Assets, which shall be paid by Seller to Buyer within thirty (30) calendar days after receipt of an invoice therefor. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Asset Files and the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Assets; provided, that prior to the occurrence and provisions set forth continuance of a Potential Event of Default or an Event of Default, notwithstanding anything in this Section 5.2(a)Agreement to the contrary, Buyer shall not contact any Mortgagor of an Eligible Asset with respect to a proposed Transaction or a Purchased Asset, any related sponsor or other obligor, any related tenant or any other loan party, without Seller’s prior consent. Between the date of this Agreement Buyer may underwrite such Purchased Assets itself or engage a third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and the Effective Timeany third party underwriter in connection with such underwriting, in addition including, but not limited to, providing Buyer and any third party underwriter with access to Buyer’s rights provided by Section 5.1(a)any and all documents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Purchased Assets in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller. Upon a written demand therefor by Buyer to Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. further agrees that Seller shall promptly provide to Buyer copies of all documents related to the Seller (but in no event later than ten (10) Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as Days after such a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to demand) reimburse Buyer for any reason whatsoeverand all out-of-pocket and invoiced attorneys’ fees, as determined costs and expenses incurred by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed connection with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, continuing due diligence on Eligible Assets and Buyer may terminate this Agreement without payment of any damages or penaltyPurchased Assets.

Appears in 1 contract

Samples: Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)

Due Diligence. (a) Purchaser shall have the right to perform due diligence activities at Seller's facilities, including but not limited to inspections of the Property, tests of related records, and discussions with employees as Purchaser deems reasonably necessary. All such due diligence activities will take place during normal business hours and shall not unduly interfere with the operations and business activities of Seller. Seller covenants and agrees Detrex will provide Purchaser and its authorized representatives reasonable access during normal business hours to all plants, offices, warehouses and other facilities of Seller and to all books and records of the terms Seller. Seller will permit Purchaser to make such inspections as it may reasonably require, and provisions set forth in this Section 5.2(a)Seller and Detrex shall cause its officers to furnish Purchaser with such available financial and operating data and other information with respect to the Seller as Purchaser may from time to time reasonably request; provided, however, that such activities shall be conducted with a view towards minimizing any disruption of the day to day business of the Seller. Between Purchaser will discuss its due diligence plan and sensitivities with Seller and Detrex prior to conducting such due diligence activities. The due diligence period will commence on the date second business day after execution of this Agreement and the Effective Time, in addition shall continue for up to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform seven business days. During such due diligence review investigation, Purchaser shall evaluate the details of the business and assets being purchased to ensure that the assets, business, and potential future earnings are as Purchaser currently believes them to be, based upon information and discussions with Detrex and Seller, and to satisfy itself that a sufficient number of Seller's sales, technical service, customer service, and technical personnel will accept employment from Purchaser following Closing, in order to assure the Seller Subsidiary retention of existing business contacts, customer base, and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents know-how related to the Seller Business that Buyer reasonably requestssale, servicing and production of the products manufactured by Seller. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees After completion of Seller individually and as a group. The the due diligence review by Buyer will be at Buyer’s sole expenseperiod, except that Seller Purchaser shall make Seller’s have until the end of business on Wednesday, September 20, 2000 (the "Cancellation Date") (subject to the time period provided in paragraph 8(a)) to cancel and rescind this Agreement without liability in the Seller Subsidiary’s employeesevent Purchaser has determined, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of based upon such due diligence review or meetings are investigation, that Purchaser should not entirely satisfactory or acceptable proceed to Buyer for any reason whatsoeverClosing. Notwithstanding the foregoing, in the event Seller does not provide Purchaser with inventory reports reflecting results of the physical count taken on September 8, 2000, as determined described in paragraph 4 by Buyer in Buyer’s reasonable discretionSeptember 12, then2000, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever the Cancellation Date shall be extended by one day for each day beyond September 12 that Seller delayed providing such reports to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyPurchaser.

Appears in 1 contract

Samples: Asset Purchase and Sale Agreement (Detrex Corporation)

Due Diligence. (a) Seller covenants Due Diligence Period. --------------------- It is expressly understood and agrees agreed that until the close of sixty (60) business days after the Agreement Date (the "Due Diligence Period"), the Buyer may make investigations regarding the Premises and be entitled to examine all leases, contracts, mechanical and structural reports, environmental reports, financial information, income and expense reports and any other documentation relating to the ownership, operation and maintenance of the terms Premises. At all times within the Due Diligence Period, Buyer shall be entitled to make tests and inspections of the Premises at his sole cost and expense, including, but not limited to, environmental investigations, structural, mechanical, wood destroying insects, lead-based paint, and any other tests and inspections Buyer deems necessary or desirable, which reports shall be kept confidential (to the extent such reports contain information which is not available to the public) by Buyer except to the extent that Buyer discloses same to its lenders, attorneys, affiliates and agents in connection with Buyer's proposed acquisition of the Premises. Buyer shall provide copies to Seller of all such reports. Buyer, in Buyer's sole discretion, and for any reason or for no reason at all, may terminate this Agreement by written notice to Seller with a copy to Escrow Agent, which written notice must be given to and received by Seller on any business day up to and including 5:00 p.m. on the final date of the Due Diligence Period and in which event the Deposit, together with accrued interest thereon, shall be returned to Buyer and neither party shall have any further liability hereunder, with the exception of the confidentiality provisions set forth in this Section 5.2(a)the preceding sentence. Between Upon execution of the date Agreement of this Agreement and the Effective TimeSale, in addition Seller shall contemporaneously deliver to Buyer’s rights provided by Section 5.1(a): a current rent roll for the Premises. including up-to-date information on security deposits, Buyerdelinquencies, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and pre-paid rents; any survey of the Seller SubsidiaryPremises in possession, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review custody or control of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related leases pertaining to the Premises; operating information pertaining to the Premises for the past year; copies of all written contracts pertaining to the Premises; all warranties or certifications that pertain to the Premises and may be assigned by Seller Business to Buyer; all environmental and/or engineering reports in Seller's possession pertaining to the Premises and any contracts pertaining to the Premises that Buyer reasonably requestsmay survive closing. Buyer and Buyer’s representatives and agents Entry onto the Premises shall be permitted after reasonable notice to meet with representatives and employees of Seller individually and as a groupSeller. The due diligence review Buyer hereby agrees to indemnify Seller from any liability and reasonable costs or expenses incurred by Buyer will be at Seller resulting from Buyer’s sole expense's or Buyers agents' entry on the Premises prior to the Closing Date, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of excluding any such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Mergerliability costs, or expenses covered by insurance. The Seller agrees to negotiate revised termsafford the Buyer the right to defend or settle any claim or action pertaining to the foregoing and Seller agrees not to settle any such claim or action without first obtaining the Buyer's consent thereto in writing, provisions which consent shall not be unreasonably withheld or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydelayed.

Appears in 1 contract

Samples: Agreement of Sale (Southern Connecticut Bancorp Inc)

Due Diligence. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Mortgage Loans, Seller, and each Servicer, including, without limitation, financial information, organization documents and purchase agreements for each pool of Purchased Mortgage Loans (to the extent not covered by confidentiality agreements), for purposes of verifying compliance with the representations, warranties and specifications made hereunder, to review the servicing of the Purchased Mortgage Loans, or otherwise, and Seller agrees that (a) upon reasonable prior notice to Seller, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its Authorized Representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Purchased Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer promptly , an electronic copy via email to , in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Purchased Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller and enter into additional Transactions with respect to the Purchased Mortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Mortgage Loans purchased in a Transaction, including, without limitation, ordering new credit reports and provisions set forth new appraisals on the related Mortgaged Properties with respect to the Purchased Mortgage Loans and otherwise re-generating the information used to originate such Purchased Mortgage Loan, which information may be used by Buyer to calculate Market Value. Buyer may underwrite such Purchased Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer or any third party underwriter in this Section 5.2(a). Between the date of this Agreement and the Effective Timeconnection with such underwriting, in addition including, but not limited to, providing Buyer with access to Buyer’s rights provided by Section 5.1(a)any documents, Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of due diligence activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 20. Section 21.

Appears in 1 contract

Samples: Master Repurchase Agreement and Securities Contract (loanDepot, Inc.)

Due Diligence. (a) Subject to the provisions of Section 9.3 hereof, Seller covenants has provided and/or shall provide Buyer and agrees its consultants and other agents and representatives with access to all the Property to perform Buyer’s inspections and review and determine the present condition of the terms and provisions set forth in this Section 5.2(a)Property. Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, Buyer shall have the full right right, at any time prior to Closing to communicate with the Seller’s on site property manager provided that Buyer gives Seller not less than twenty-four (a24) examine hours prior written notice (which notice may be made by email to xxxxxxxxx@xxxxxxxx.xxx), and Seller shall have the officesright, propertiesbut not the obligation, equipmentto be present at any meeting with the property manager. Seller has delivered or made available to Buyer, invoicesor shall deliver or make available to Buyer by no later than three (3) Business Days after the Effective Date, customer recordscopies of surveys prepared by Seller, agreement books Seller’s title policy, Phase I or other environmental reports on the Property obtained by Seller, building permits, use and records of Seller and occupancy permits or the equivalent, all contracts pertaining to the operation of the Seller SubsidiaryProperty, including all service and maintenance agreements and equipment leases listed on Exhibit D (bcollectively, the “Service Contracts”), other contracts, agreements, reports, third party appraisals, projections, budgets, operating statements and quarterly reports for the preceding two (2) meet years, and discuss other items and materials delivered to, prepared by or on behalf of, or in Seller’s possession with respect to the Seller Business Real Property, and the operations, history and prospects operation of the Seller Business with representatives hotel thereon (collectively, the “Due Diligence Materials”) in Seller’s or its property manager’s possession, except as otherwise specifically provided herein. Notwithstanding anything to the contrary contained herein, the Due Diligence Materials shall expressly exclude: (i) those portions of the Due Diligence Materials that would disclose Seller’s cost of acquisition of the Property, or cost of construction of the Improvements and employees of Seller related soft costs; (ii) any reports, presentations, summaries and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance like prepared for any of Seller’s personnel and the personnel boards, committees, members or investors in connection with its consideration of the acquisition of the Property, construction of the Improvements or sale of the Property; (iii) any proposals, letters of intent, draft contracts or the like prepared by or for other prospective purchasers of the Property or any part thereof; (iv) Seller’s internal memoranda, attorney-client privileged materials, internal appraisals or projections; and (v) any information which Seller Subsidiary, will prepare an inventory is prohibited from disclosing because such information is the subject of all assets and other Intellectual Property of a confidentiality agreement between Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltythird party.

Appears in 1 contract

Samples: Agreement of Purchase and Sale (Moody National REIT I, Inc.)

Due Diligence. (a) Buyer is hereby granted a period commencing on the Effective Date and terminating on May 21, 1996 (herein referred to as the "Due Diligence Period") to inspect the Properties, Seller's books and records pertaining to the Properties and other information relating to the Properties, at Buyer's sole cost and expense. During the Due Diligence Period, Buyer may perform, at Buyer's sole cost and expense, such items of due diligence as it may deem appropriate, provided Buyer keeps all such information obtained strictly confidential. Seller covenants hereby authorizes Buyer and Buyer's agents, upon reasonable notice and during reasonable business hours, to enter upon the Properties in order to inspect the same and to conduct the desired due diligence including but not limited to, environmental and engineering studies, all at Buyer's sole cost and expense. If Buyer elects not to acquire the Properties pursuant to the terms and conditions hereof, Buyer must notify Seller in writing prior to 5:00 PM on May 21, 1996, time being of the essence with respect to such date and time (the "Due Diligence Expiration Date"). If such written notice is not delivered to Seller by Buyer prior to the Due Diligence Expiration Date, Buyer shall be obligated to deliver to the Escrow Agent the Second Deposit and to close the transaction contemplated hereby pursuant to the terms and conditions hereof, and shall have and shall be deemed to have waived any and all rights to terminate this Contract pursuant to this paragraph. In the event Buyer does timely notify Seller in writing that it has elected to terminate this Contract, the First Deposit shall be returned to Buyer and this Contract shall be deemed to be terminated and neither party shall have any further rights against or obligations to the other, except as otherwise expressly provided in this Contract. For and in consideration of the right to inspect the Properties and to conduct the desired due diligence, Buyer agrees to restore any and all damage to the Properties and/or any of them caused by Buyer and/or Buyer's agents, representatives, brokers, contractors, subcontractors, employees and/or licensees and to indemnify, defend and hold Seller harmless from and against any and all suits, actions, proceedings, damages, losses, liabilities, liens, repairs, fees, costs and expenses (including reasonable attorneys' fees, costs and expenses) caused by Buyer or its agents, representatives, brokers, contractors, subcontractors, employees or licensees or arising out of or relating to Buyer's (or Buyer's agents', representatives', brokers', contractors', subcontractors', employees' or licensees') inspection, activities or entrance on the Properties and/or any one of them. The aforesaid obligation to restore and aforesaid indemnity shall survive the Closing or the earlier termination of this Contract. It is specifically understood and agreed that the transaction contemplated hereby is an "all or none" transaction meaning that if Buyer elects to terminate this Contract pursuant to any express provision of this Contract (including this paragraph 12) with respect to one or more, but not all, of the Properties, then Buyer's election to terminate shall be deemed to be and shall operate as an election to terminate the entire Contract for all of the terms Properties (the "All or None Condition"). If such election is made by Buyer, this Contract shall be deemed to be terminated and provisions set forth Buyer shall be entitled to a return of the Contract Deposit (or so much as may have been deposited) and neither party shall have any further right or obligation hereunder except as otherwise expressly provided in this Section 5.2(a)Contract. Between Notwithstanding the date of this Agreement and the Effective Timeforegoing, in addition the event Buyer timely elects to Buyer’s rights provided by Section 5.1(a)terminate this Contract with respect to one or more, Buyerbut not all, acting through Buyer’s own personnelof the Properties, legal counsel, accountants and other representatives and agents, Seller shall have the full right to (a) examine the officesright, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary discretion, to waive the All or appropriateNone Condition and to elect to permit Buyer to purchase the Property or Properties with respect to which Buyer did not elect to terminate this Contract, including a due diligence review on the terms and conditions set forth herein except Seller and Buyer shall mutually agree upon the purchase price for such Property or Properties. The foregoing provision shall apply to all of the Contractsrights of Buyer to terminate this Contract which are expressly set forth herein including paragraphs 4, assets12 and 15 hereof, rightsprovided, liabilities and Intellectual Property of Seller . Buyer’s representatives and agentshowever, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller this paragraph shall promptly provide not be deemed to grant to Buyer copies of all documents related any right to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyContract not expressly set forth herein.

Appears in 1 contract

Samples: Contract of Sale (Home Properties of New York Inc)

Due Diligence. Buyer will have until the expiration of the fifth business day (The "Review Period") after delivery of each of following items, to be supplied by Seller, to conduct all of its inspections and due diligence and satisfy itself regarding each item, the Property, and this transaction. Buyer agrees to indemnify and hold Seller harmless for any loss or damage to the Entire Property or persons caused by Buyer or its agents arising out of such physical inspections of the Entire Property. (a) Seller covenants The original and agrees one copy of a title insurance commitment for an Owner's Title insurance policy (see paragraph 8 below). (b) Copies of a Certificate of Occupancy or other such document certifying completion and granting permission to all permanently occupy the improvements on the Entire Property as are in Seller's possession. (c) Copies of an "as built" survey of the terms and provisions Entire Property done concurrent with Seller's acquisition of the Property. (d) Lease (as further set forth in paragraph 11(a) below) of the Entire Property showing occupancy date, lease expiration date, rent, and Guarantys, if any, accompanied by such tenant financial statements as may have been provided most recently to Seller by the Tenant and/or Guarantors. Buyer Initial: /s/ JK Purchase Agreement for Applebee's - Middletown, OH It is a contingency upon Seller's obligations hereunder that two (2) copies of Co-Tenancy Agreement in the form attached hereto duly executed by Buyer and Seller and dated on escrow closing date be delivered to the Seller on the closing date. Buyer may cancel this Section 5.2(aagreement for ANY REASON in its sole discretion by delivering a cancellation notice, return receipt requested, to Seller and escrow holder before the expiration of the Review Period. Such notice shall be deemed effective only upon receipt by Seller. If this Agreement is not cancelled as set forth above, the First Payment shall be non-refundable unless Seller shall default hereunder. If Buyer cancels this Agreement as permitted under this Section, except for any escrow cancellation fees and any liabilities under sections 15(a) of this agreement (which will survive), Buyer (after execution of such documents reasonably requested by Seller to evidence the termination hereof) shall be returned its First Payment, and Buyer will have absolutely no rights, claims or interest of any type in connection with the Property or this transaction, regardless of any alleged conduct by Seller or anyone else. Between Unless this Agreement is canceled by Buyer pursuant to the date of terms hereof, if Buyer fails to make the Second Payment, Seller shall be entitled to retain the First Payment and Buyer irrevocably will be deemed to be in default under this Agreement. Seller may, at its option, retain the First Payment and declare this Agreement null and void, in which event Buyer will be deemed to have canceled this Agreement and relinquish all rights in and to the Effective Time, in addition to Buyer’s Property or Seller may exercise its rights provided by under Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business 14 hereof. If this Agreement is not canceled and the operationsSecond Payment is made when required, history all of Buyer's conditions and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer contingencies will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydeemed satisfied.

Appears in 1 contract

Samples: Purchase Agreement (Aei Net Lease Income & Growth Fund Xx Limited Partnership)

Due Diligence. (a) Seller covenants Prior to the Closing, Sellers and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition Greenwich shall afford to Buyer’s rights provided by Section 5.1(a), Buyerits employees, acting through Buyer’s own personnelaccountants, legal counsel, accountants counsel and other representatives and agents, shall have the full right access to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and all of the Seller SubsidiaryAssets, books, Contracts, commitments, records and other document of Greenwich, and (b) meet and discuss the Seller Business and the operationsall books, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Sellercontracts, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriatecommitments, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets records and other Intellectual Property documents of Seller Sellers that are reasonably necessary for Buyer to evaluate and undertake the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions transaction contemplated by this Agreement. Sellers and Greenwich shall, prior to Closing, furnish promptly to Buyer all other information concerning the business, Assets, records and Facility Employees as Buyer may reasonably request for such purpose. In connection with such due diligence, as well as Buyer's participation in the operation of the Steering Committee and its management of the Assets (including the MergerFacility) Buyer will, or to negotiate revised termsas of Closing, provisions or conditions for any have performed a comprehensive due diligence investigation of the transactions contemplated by this AgreementAssets and obtained a thorough understanding of the operation of the Assets. In the course of these activities, including nothing has come to the Merger, attention of Buyer as of the Signing (that Sellers do not have actual knowledge of) that there is a material inaccuracy in any representation or warranty of Sellers contained herein and Buyer may terminate shall disclose to Sellers any such findings between Signing and Closing (that Sellers do not have actual knowledge of). Provided that Buyer has not breached the representation and warranty set forth above in this Agreement without payment Section 5.6, no investigation conducted pursuant to this Section 5.6 or prior to the Closing shall be deemed to modify any representation or warranty made by Sellers or Greenwich herein or any obligation of any damages Sellers or penaltyGreenwich hereunder.

Appears in 1 contract

Samples: Purchase Agreement (Immunex Corp /De/)

Due Diligence. (a) Seller covenants Each of Seller, Guarantor and Servicer agrees to promptly provide Buyer and its agents with access to, copies of and extracts from any and all documents, books, records, agreements, instruments or information (including, without limitation, any of the foregoing in computer data banks and computer software systems) relating to its financial condition, the performance of its obligations under the Program Documents, the documents contained in the Servicing File or the Purchased Loans in the possession, or under the control, of Servicer, Guarantor or Seller. In addition, Buyer has the right to perform continuing due diligence reviews of (x) Seller, Guarantor, Servicer, and their respective directors and officers, including, without limitation, Seller’s, Servicer’s and Guarantor’s respective financial condition and performance of Seller’s, Guarantor’s and Servicer’s obligations under the Program Documents, and (y) the Servicing File and the Purchased Loans. Seller and Guarantor shall also make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer shall enter into transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Loans, including, without limitation, ordering new credit reports, new appraisals on the related Mortgaged Properties and provisions set forth in this Section 5.2(a)otherwise re-generating the information used to originate such Purchased Loans. Between the date of this Agreement Servicer, Guarantor and the Effective Time, in addition to Seller shall pay Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants out-of-pocket costs and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with any due diligence hereunder. Servicer, Guarantor and Seller shall pay Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydue diligence expenses.

Appears in 1 contract

Samples: Master Repurchase Agreement (New Century Financial Corp)

Due Diligence. (a) Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Loans in the possession or under the control of Seller, any other servicer or subservicer and/or the Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Loan Files and the Purchased Loans. Seller acknowledges that Buyer has the right to request, at Seller’s expense, an Appraisal for any Mortgaged Property securing a Purchased Loan that shall have been subject to a Credit Event. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, Master Repurchase Agreement Resource Capital 70 warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Purchased Loans. Buyer may underwrite such Purchased Loans itself or engage a third party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Buyer and provisions set forth any third party underwriter reasonably acceptable to Seller in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of financial models, agreements, instruments or information relating to such Purchased Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to reimburse Buyer for any reason whatsoever, as determined and all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term activities pursuant to this Section 27 on or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of before the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions Purchase Date for any of the transactions contemplated by this Agreement, including the Merger, and Purchased Loan or within ten (10) days after Buyer may terminate this Agreement without payment of shall reject any damages or penaltyprospective New Collateral.

Appears in 1 contract

Samples: Master Repurchase Agreement (Resource Capital Corp.)

Due Diligence. Each Seller Party acknowledges that Buyer has the right to perform initial and continuing due diligence reviews with respect to the Purchased Assets, Mezzanine Subsidiary Assets, Seller Parties, Collateral Administrator and other parties which may be involved in or related to Transactions (a) Seller covenants and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Timecollectively, in addition to Buyer’s rights provided by Section 5.1(a“Third Party Transaction Parties”), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as deemed appropriate by Buyer in its sole discretion, for purposes of verifying compliance with the representations, warranties and absolute discretion deems necessary specifications made hereunder and obtaining the information set forth in Exhibits M-1 and M-2 hereto, and Seller Parties and Collateral Administrator each agree that upon reasonable prior notice to Seller Parties or appropriateCollateral Administrator, including as applicable, unless an Event of Default shall have occurred and be continuing, in which case no notice is required, Buyer or its authorized representatives will be permitted at reasonable times to examine, inspect, and make copies and extracts of, the Asset Files and any and all documents, records, agreements, instruments or information relating to such Purchased Assets and Mezzanine Subsidiary Assets in the possession or under the control of any Seller Party or Collateral Administrator; provided however, that unless (a) an Event of Default has occurred and is continuing or (b) a Credit Event (and in such case, solely with respect to the Purchased Asset and Mezzanine Subsidiary Assets related to such Credit Event) has occurred and is continuing in the case of this clause (b), for at least thirty (30) days, Buyer does not expect to conduct more than one (1) such review during any one (1) year period. Seller Parties will use commercially reasonable efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Seller Parties and Collateral Administrator shall also make available to Buyer at reasonable times and upon reasonable prior notice a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files, the Purchased Assets and the Mezzanine Subsidiary Assets. Without limiting the generality of the foregoing, each Seller acknowledges that Buyer may purchase Purchased Assets from Sellers based solely upon the information provided by Sellers to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to cause Collateral Administrator or its agent to conduct a partial or complete due diligence review on some or all of the ContractsPurchased Assets and Mezzanine Subsidiary Assets purchased in a Transaction, assetsincluding, rightswithout limitation, liabilities ordering new Qualified Appraisals on the related Mortgaged Properties and Intellectual Property of Seller . Buyer’s representatives otherwise re-generating the information used to originate such Purchased Asset and agentsMezzanine Subsidiary Asset and reviewing intercreditor agreements, with the assistance of Seller’s personnel and the personnel property management agreements, formation documents of the Seller Subsidiaryproperty owners and their direct and indirect owners, will prepare an inventory of all assets financial statements, environmental and engineering reports, underlying title policies including owner’s and UCC-9 title insurance policies to the extent applicable, legal opinions and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer as may be mutually agreed among Sellers and Buyer. For the avoidance of doubt, Collateral Administrator’s representatives and agents shall be permitted obligation to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoevershall not preclude Buyer’s right to perform due diligence on the Purchased Assets and Mezzanine Subsidiary Assets prior to the Purchase Date and as necessary during the term of the Agreement, as determined by Buyer in is sole discretion, subject to the terms of the Mortgage Loan documents or Mezzanine Loan documents, as applicable. Buyer may underwrite such Purchased Assets and Mezzanine Subsidiary Assets itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller and Collateral Administrator agree to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets and Mezzanine Subsidiary Assets in the possession, or under the control, of Seller Parties or Collateral Administrator. Each Seller further agrees that it shall pay, to the extent Sellers have received an invoice therefor, all reasonable and documented out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s reasonable discretionactivities pursuant to this Section 17 for one (1) review during any one (1) year period; provided that (i) such limitation shall not apply upon the occurrence and continuance of an Event of Default or the occurrence and continuance of a Credit Event for at least thirty (30) days (and in such case, thensolely with respect to the Purchased Asset or Mezzanine Subsidiary Asset related to such Credit Event), notwithstanding any other term (ii) such amounts shall not exceed the Asset Diligence Cap for each Eligible Asset reviewed, unless (x) an Event of Default or provision (y) a Credit Event (solely with respect to the Purchased Asset related to such Credit Event) has occurred and is continuing in the case of this Agreementclause (y), for at least thirty (30) days, in which case such Asset Diligence Cap shall not apply, and (iii) Sellers and Buyer agree that additional expenses may be incurred for complex transactions, Buyer will have no duty or obligation of any kind or nature whatsoever shall notify Sellers before exceeding the Asset Diligence Cap and Buyer and Sellers shall endeavor in good faith to proceed with or agree to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate a revised terms, provisions or conditions limitation on diligence expenses for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltysuch complex transaction.

Appears in 1 contract

Samples: Master Repurchase Agreement (Ares Commercial Real Estate Corp)

Due Diligence. Each Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and each Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller agrees that upon reasonable (abut no less than three (3) Business Day’s) prior notice unless an Event of Default shall have occurred or Buyer has a good faith belief that an Event of Default shall occur, in which case no notice is required, to such Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of a Seller and/or the Custodian. Each Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, each Seller acknowledges that Buyer may purchase Mortgage Loans from a Seller based solely upon the information provided by a Seller to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined Seller. Each Seller further agrees that the Sellers shall pay all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 27 (“Due Diligence Costs”).

Appears in 1 contract

Samples: Master Repurchase Agreement (Homebanc Corp)

Due Diligence. (aA) Seller covenants During the Due Diligence Period, Purchaser or Purchaser's representative shall have the right, at its sole risk and agrees expense, to all conduct an inspection and examination of the Property and all matters (including environmental and land use matters) relating to the Property as Purchaser shall require, other than title examination which shall be governed under Paragraph 5 of the Agreement. All inspection fees, appraisal fees, engineering fees, legal costs, and other expenses of any kind incurred by Purchaser relating to such due diligence will be solely Purchaser's expense. Seller shall cooperate with Purchaser in all reasonable respects at no cost to Seller. In conducting any due diligence hereunder, Purchaser will treat, and will require any representative of Purchaser to treat, all information obtained by Purchaser pursuant to the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement as strictly confidential. Although Purchaser may search the applicable public records in connection with the inspections and examinations referred to above, or in order to ascertain or confirm the Effective Timequality of title to the Property, in addition Purchaser shall not under any circumstances cause the Property to Buyer’s rights provided be inspected by Section 5.1(a)any governmental authority prior to Closing. Purchaser agrees to indemnify and hold Seller, Buyertenants, acting through Buyer’s own personneland their contractors, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives agents and employees harmless from any and all injuries, losses, liens, claims, judgments, liabilities, costs, expenses or damages (including reasonable attorneys' fees and court costs) sustained by or threatened against Seller which result from or arise out of Seller and the Seller Subsidiary and (c) otherwise perform such any due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in by Purchaser or its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyRider.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Heritage Oaks Bancorp)

Due Diligence. (a) Seller covenants and agrees to all of acknowledges that Buyer has the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such continuing due diligence review reviews with respect to the Purchased Assets, for purposes of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, verifying compliance with the assistance representations, warranties and specifications made hereunder, or determining or re-determining the Asset Base for purposes of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision Section 4 of this Agreement, Buyer will have no duty or obligation of otherwise, and Seller agrees that Buyer, at its option, has the right at any kind time to conduct a partial or nature whatsoever to proceed with complete due diligence review on any or to consummate any all of the transactions contemplated Purchased Assets, including, without limitation, ordering new credit reports and Appraisals on the applicable collateral and otherwise regenerating the information used to originate such Purchased Assets. Upon reasonable prior notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to any Purchased Asset in the possession or under the control of Seller, any servicer or sub-servicer and/or Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Asset Files, the Servicing Records and the Purchased Assets. Seller agrees to cooperate with Buyer and any third party underwriter designated by this AgreementBuyer in connection with such underwriting, including including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the Mergerpossession, or under the control, of such Seller. Subject to negotiate revised termsSection 12(g)(vi), provisions or conditions Seller agrees to reimburse Buyer for any and all attorneys’ fees, costs and expenses incurred by Buyer in connection with continuing due diligence on Eligible Assets and Purchased Assets, including, without limitation, the cost of annual updated Appraisals on the transactions contemplated by this Agreement, including the Merger, Mortgaged Properties and Buyer may terminate this Agreement without payment of any damages or penaltyDiligence Fees.

Appears in 1 contract

Samples: Master Repurchase and Securities Contract Agreement (Granite Point Mortgage Trust Inc.)

Due Diligence. (a) Property Management Seller covenants and hereby agrees to deliver to Property Management Buyer within three (3) business days of the effective date (for purposes herein, said delivery shall require that Property Management Seller make available all such materials at the Location of the Management Company), which shall mean the date on which the last of the Property Management Buyer, Property Management Seller and any other party signing this Agreement shall have signed or initialed this Agreement, as applicable (“Effective Date”), those due diligence items (“Due Diligence Items”) requested by Property Management Buyer or set forth herein. Property Management Buyer shall have thirty (30) days (“Due Diligence Period”) from receipt of all of the terms Due Diligence Items to review and provisions to approve the Due Diligence Items and any other information or documentation it acquires. If Property Management Buyer, in its sole discretion, does not approve any of the Due Diligence Items or any of the information provided to Property Management Buyer pursuant to this section or any information or documentation it otherwise acquires at any time prior to the expiration of the Due Diligence Period, Property Management Buyer, at its option, may terminate this Agreement by written notice to Property Management Seller delivered at any time prior to the expiration of the Due Diligence Period, whereupon this Agreement shall become null and void and of no further force and effect, the Deposit (as defined below) shall be returned to the Property Management Buyer and the parties hereto shall have no further obligation to one another. Property Management Buyer’s failure to terminate this Agreement pursuant to this Section 1.4 shall not affect Property Management Buyer’s right to require the satisfaction of all conditions to closing set forth in this Section 5.2(a)Agreement. Between the date Property Management Buyer and Property Management Seller shall also reasonably cooperate with Property Management Buyer following execution of this Agreement and to obtain the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation transfer of any kind or nature whatsoever licenses in favor of Property Management Buyer necessary to proceed with or to consummate any of run the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyBusiness.

Appears in 1 contract

Samples: Purchase Agreement (Ark Restaurants Corp)

Due Diligence. (a) Seller covenants and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between the date Upon execution of this Agreement until the Closing, Sellers shall make the Records relating to the Interests available to Buyer for examination and the Effective Time, in addition to Buyer’s rights provided copying by Section 5.1(a), Buyer, acting through and shall grant Buyer access to the Interests for inspection. Sellers shall not be obligated to perform any title work or provide abstracts other than those presently in Sellers’ possession, nor will any existing title opinions be made current by Sellers. Sellers will use reasonable business efforts to furnish to Buyer all other information with respect to the Interests as Buyer may from time to time reasonably request, except to the extent that Sellers determine in good faith that it is prohibited by agreement with a third party from disclosing the information covered thereby; provided, that Sellers shall exercise reasonable business efforts to obtain all third party consents to such disclosure. Buyer agrees to conduct due diligence in a professional and orderly manner and at Buyer’s own personnelcost and expense without disruption of Sellers’ normal and usual operations. EXCEPT AS OTHERWISE SET FORTH IN SECTION 4.3, legal counselBUYER RECOGNIZES AND AGREES THAT ALL MATERIALS MADE AVAILABLE TO IT IN CONNECTION WITH THE TRANSACTION CONTEMPLATED HEREBY, accountants and other representatives and agentsWHETHER MADE AVAILABLE PURSUANT TO THIS SECTION OR OTHERWISE, shall have the full right to (a) examine the officesARE MADE AVAILABLE TO IT AS AN ACCOMMODATION, propertiesAND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND AS TO THE ACCURACY AND COMPLETENESS OF SUCH MATERIALS. NO WARRANTY OF ANY KIND IS MADE BY SELLERS AS TO THE INFORMATION SUPPLIED TO BUYER OR WITH RESPECT TO INTERESTS TO WHICH THE INFORMATION RELATES, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.AND BUYER EXPRESSLY AGREES THAT ANY CONCLUSIONS DRAWN THEREFROM SHALL BE THE RESULT OF

Appears in 1 contract

Samples: Purchase and Sale Agreement (EV Energy Partners, LP)

Due Diligence. Each Purchaser, Agent, any Verification Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, to conduct inspection and perform continuing due diligence reviews of (ax) Seller covenants and Guarantor, including, without limitation, their respective financial condition and performance of its obligations under the Program Documents, and (y) the Servicing File and the Purchased Assets (including, but not limited to, any documentation related to Seller’s FHA servicing practices), and Seller agrees promptly to provide each Purchaser, Agent, any Verification Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the terms foregoing in computer data banks and provisions set forth computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in this Section 5.2(a)the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. Between In addition, Seller shall also make available to each Purchaser, Agent and/or any Verification Agent, upon reasonable prior notice and during normal business hours, a knowledgeable financial or accounting officer of Seller for the date purpose of this Agreement answering questions respecting any of the foregoing. Without limiting the generality of the foregoing, Seller acknowledges that each Purchaser or Agent for the benefit of Purchasers shall enter into transactions with Seller based solely upon the information provided by Seller to each Purchaser and/or Agent and the Effective Timerepresentations, in addition to Buyer’s rights provided by Section 5.1(a)warranties and covenants contained herein, Buyerand that each Purchaser, acting through Buyer’s own personnelAgent and/or any Verification Agent, legal counsel, accountants and other representatives and agentsat its option, shall have the full right at any time to (a) examine the officesconduct itself or through its agents, properties, equipment, invoices, customer records, agreement books or require Seller to conduct quality reviews and records of Seller and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by any Purchaser, Agent and/or any Verification Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller Subsidiaryagrees to reimburse each Purchaser, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such Agent and/or any Verification Agent for all reasonable out-of-pocket due diligence review of Seller, the Seller Subsidiary costs and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide expenses incurred pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection ‎37.

Appears in 1 contract

Samples: Master Repurchase Agreement (DITECH HOLDING Corp)

Due Diligence. The Inspection Period (herein so called) commenced on the date hereof and shall continue until the close of business on August 31, 2007. Prior to the end of the Inspection Period, Buyer shall complete its examination of and shall satisfy itself with the condition of title to the Subject Interests at its own expense. However, (a) Seller covenants and agrees shall make available to Buyer, at Seller’s place of business or elsewhere convenient to Seller, all of Seller's title opinions, certificates of title, abstracts of title, title data, records, files, leases, agreements, declarations, orders, contracts, permits, licenses, easements and other information relating to the terms Subject Interests and provisions set forth access to each property for a physical inspection, and (b) Seller shall instruct all of its attorneys, contractors, employees, agents and officers to cooperate fully with Buyer and its Representatives and assist them in this Section 5.2(a)the due diligence efforts. Between the date of this Agreement and the Effective TimeSeller shall make reasonable efforts to obtain any consents needed under contractual confidentiality provisions, if any, and, in addition the event said consents are able to be obtained by Seller’s reasonable efforts, furnish Buyer a copy of all gas contracts, gas transportation and treating agreements, operating agreements and all amendments to each. The above-described information to be provided by Seller shall be provided for the convenience of Buyer only and shall not form the sole basis of Buyer’s rights provided by Section 5.1(a)decision to purchase the Subject Interests or in any way alter, Buyeralleviate, acting through waive, void or reduce Buyer’s own personnelobligation to examine and satisfy itself with the condition of title to the Subject Interests. Seller will, at Seller's expense, use reasonable diligence to obtain all consents and waivers of preferential or other rights to purchase from third parties and governmental authorities as may be reasonably necessary to the conveyance, assignment, and transfer to Buyer of the Subject Interests. As used herein, “Representative,” with respect to a particular person or entity, means any director, officer, employee, agent, consultant, advisor other representative of such person or entity, including legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyfinancial advisors.

Appears in 1 contract

Samples: Purchase and Sale Agreement (CrossPoint Energy CO)

Due Diligence. Each Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, the Sellers, Settlement Agents, Approved Investors and other parties which may be involved in or related to Transactions (acollectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Sellers agree that upon reasonable (but not less than three (3) Business Days) prior notice to the Sellers, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Sellers. The Sellers will use commercially reasonable efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Provided that no Event of Default has occurred and is continuing, Xxxxx agrees that it shall exercise best efforts, in the conduct of any such due diligence, to minimize any disruption to Sellers’ normal course of business. The Sellers shall also make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans and, once Sellers and Buyer establish mutually agreeable procedures for the handling and use by Buyer of Sellers’ confidential beneficial ownership information, Sellers shall ensure that Buyer has sufficient information relating to Sellers’ beneficial ownership for purposes of Buyer’s compliance with 31 C.F.R. § 1010.230. Without limiting the generality of 58 LEGAL02/43731153v4 the foregoing, each Seller acknowledges that Buyer may purchase Mortgage Loans from such Seller based solely upon the information provided by such Seller to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Each Seller agrees to cooperate with Xxxxx and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with reasonable access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Sellers. Each Seller further agrees to pay all out-of-pocket costs and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in Buyerconnection with Xxxxx’s reasonable discretion, then, notwithstanding any other term or provision of activities pursuant to this Agreement, Buyer will have Section 17 (the “Due Diligence Costs”); provided that no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any Seller shall be responsible for Due Diligence Costs in excess of the transactions contemplated by this AgreementDue Diligence Cap; provided, including however, that the Merger, Due Diligence Cap shall not apply upon the occurrence of a Default or to negotiate revised terms, provisions or conditions for any Event of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltyDefault.

Appears in 1 contract

Samples: Master Repurchase Agreement (Rocket Companies, Inc.)

Due Diligence. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, Seller, Guarantor and Servicer, including, without limitation, financial information, organization documents, business plans, purchase agreements and underwriting purchase models for each pool of Mortgage Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that (a) upon reasonable prior notice to Seller, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of the Asset Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans (the “Due Diligence Documents”) in the possession or under the control of Seller and/or the Custodian, or (b) upon request, Seller shall create and deliver to Buyer within one (1) Business Day of such request, an electronic copy via email to Xxxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxx.xxx, in a format acceptable to Buyer, of such Due Diligence Documents as Buyer may request. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Asset Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Purchased Assets from Seller and enter into additional Transactions with respect to the Mortgage Loans based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties with respect to the Mortgage Loans and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable activities pursuant to this Section 19. Buyer may, based on such due diligence, require to change contractual terms and add protections it deems, in its absolute discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever necessary to proceed with or to consummate any of protect its rights in the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.Mortgage Loans

Appears in 1 contract

Samples: Master Repurchase Agreement (Finance of America Companies Inc.)

Due Diligence. (a) Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, Seller, Settlement Agents, Approved Investors and other parties which may be involved in or related to Transactions (collectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice to Seller, unless an Event of Default shall have occurred, in which case no notice is required, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Seller. Seller will use best efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Seller shall also make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller further agrees that it shall promptly provide to Buyer copies of pay all documents related to the Seller Business that Buyer reasonably requests. Buyer out-of-pocket costs and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 17.

Appears in 1 contract

Samples: Master Repurchase Agreement (loanDepot, Inc.)

Due Diligence. Seller acknowledges that Buyer or any third party designated by Buyer (aincluding Buyer’s regulators) has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice unless an Event of Default shall have occurred and be continuing, in which case no notice is required, to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Seller or Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re‑generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller SubsidiaryCustodian. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Sellerpay all reasonable and documented out-of-pocket costs and expenses incurred by Buyer and Custodian in connection with Buyer’s and the Seller Subsidiary’s employees, representatives, officers and accountants available activities pursuant to this Section 17 subject to a cap with respect to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer $5,000 for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding twelve (12) month period (“Due Diligence Costs”); provided that the Due Diligence Cap shall not apply at any other term or provision of this Agreement, Buyer will time that a Default shall have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, occurred and Buyer may terminate this Agreement without payment of any damages or penaltybe continuing.

Appears in 1 contract

Samples: Master Repurchase Agreement (Stonegate Mortgage Corp)

Due Diligence. (a) Each Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, each Seller Party, Settlement Agents, Approved Appraisers, Approved Investors and other parties which may be involved in or related to Transactions (collectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller Party agrees that upon reasonable prior notice unless an Event of Default shall have occurred and be continuing, in which case no notice is required, to any Seller Party, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of a Seller Party. Each Seller Party will use best efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Each Seller Party also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re‑generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third LEGAL02/33574838v9 ‑26‑ party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller. The Seller Parties further agree that the Seller Parties shall pay all out‑of‑pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 5.2(a17 (“Due Diligence Costs”). Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller; provided, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller Parties shall promptly provide not be required to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined pay Due Diligence Costs incurred by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any excess of the transactions contemplated by this Agreement, including the Merger, Due Diligence Cap unless a Default or to negotiate revised terms, provisions or conditions for any Event of the transactions contemplated by this Agreement, including the Merger, Default has occurred and Buyer may terminate this Agreement without payment of any damages or penaltyis continuing.

Appears in 1 contract

Samples: Master Repurchase Agreement (M I Homes Inc)

Due Diligence. (a) Seller The Sellers acknowledge that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and the Sellers, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Sellers agree that upon reasonable prior notice unless an Event of Default shall have occurred, in which case no notice is required, to the Sellers, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Sellers and/or the Custodian. The Sellers also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, the Sellers acknowledge that Buyer may purchase Mortgage Loans from the Sellers based solely upon the information provided by the Sellers to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Sellers agree to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Sellers. The Sellers further agree that the Sellers shall pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 5.2(a27 (“Due Diligence Costs”). Between the date ; provided, that such Due Diligence Costs shall not exceed $25,000 per calendar year unless a Default or Event of this Agreement and the Effective TimeDefault shall have occurred, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, which event Buyer shall have the full right to (a) examine perform due diligence, at the offices, properties, equipment, invoices, customer records, agreement books and records sole expense of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related Sellers without regard to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydollar limitation set forth herein.

Appears in 1 contract

Samples: Master Repurchase Agreement (ECC Capital CORP)

Due Diligence. (a) Each Seller Party acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Mortgage Loans, each Seller Party, Settlement Agents, Approved Appraisers, Approved Investors and other parties which may be involved in or related to Transactions (collectively, “Third Party Transaction Parties”), from time to time, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and each Seller Party agrees that upon reasonable prior notice unless an Event of Default shall have occurred and be continuing, in which case no notice is required, to any Seller Party, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage ‑26‑ Loans in the possession or under the control of a Seller Party. Each Seller Party will use best efforts to cause Third Party Transaction Parties to cooperate with any due diligence requests of Buyer. Each Seller Party also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re‑generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller. The Seller and of Parties further agree that the Seller Subsidiary, (b) meet Parties shall pay all out‑of‑pocket costs and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretion, then, notwithstanding any other term or provision of activities pursuant to this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 17 (“Due Diligence Costs”).

Appears in 1 contract

Samples: Master Repurchase Agreement (M I Homes Inc)

Due Diligence. Buyer has paid Seller the sum of $25.00, the receipt of which is hereby acknowledged by Seller, as option money for Buyer having the right to terminate this Agreement during the Due Diligence Period. Within ten (a10) days after the Effective Date, Seller covenants shall deliver to Buyer the Due Diligence Materials to the extent within Seller’s possession. Upon the completion of Seller’s delivery to Buyer of all such Due Diligence Materials, Buyer and agrees Seller shall agree in writing (which may be via e-mail) as to all such date of the terms and provisions set forth in this Section 5.2(a). Between completion of delivery, which shall be the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and commencement of the Seller SubsidiaryDue Diligence Period. Prior to Closing, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s 's representatives and agents shall be permitted have the right to meet with enter upon Property at Buyer's expense, and at reasonable times, to inspect, survey, examine, and test the Property as Buyer may deem necessary as part of Buyer's acquisition of the Property. Seller shall allow Buyer and its representatives and employees agents access to, or shall provide documents for review, whichever the case may be, with respect to the Property at all reasonable times and shall cooperate with Buyer’s efforts to conduct the inspections permitted herein. Seller agrees to cooperate in introducing Buyer to vendors, staff and other parties who have experience with the Property’s ongoing operations. Buyer shall indemnify and hold Seller harmless from and against any and all claims, injuries and damages to persons and/or property arising out of or resulting from the exercise of Buyer’s inspection rights; provided, however, Buyer’s indemnity obligations shall not extend to any claims, injuries or damages resulting from or relating to (i) any action of Seller individually and as a group. The due diligence review or its agents or representatives or (ii) any existing environmental contamination or other conditions with respect to the Property that may be discovered by Buyer will be as the result of its investigations. During the Due Diligence Period, Buyer may evaluate the Property, the feasibility of the transaction, the availability and cost of financing, and any other matters of concern to Buyer. Buyer shall have the right to terminate this Agreement by delivering notice to Seller at Buyer’s sole expenseor before 11:59 p.m. Eastern time on the last day of the Due Diligence Period, except that Seller shall make Seller’s and the Seller Subsidiary’s employeesif Buyer determines, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoeveror no reason, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever that it is not desirable to proceed with the transaction. In such event, Holder shall promptly refund the Eaxxxxx Xoney to Buyer, and neither party shall have any further obligations or to consummate any of the transactions contemplated by liability under this Agreement except as expressly provided in this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Manufactured Housing Properties Inc.)

Due Diligence. Seller acknowledges that each Buyer or any third party designated by a Buyer (aincluding a Buyer’s regulators) has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice unless an Event of Default shall have occurred and be continuing, in which case no notice is required, to Seller, each Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Seller or Custodian. Seller also shall make available to each Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that the Buyers may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to the Administrative Agent in the Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that each Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re generating the information used to originate such Mortgage Loan. Each Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with the Buyers and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing each Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller SubsidiaryCustodian. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all reasonable and documented out-of-pocket costs and expenses incurred by a Buyer or the Seller Subsidiary’s employees, representatives, officers and accountants available Custodian in connection with activities pursuant to Buyer without charge and shall provide copies this Section 17 subject to a cap with respect to the Buyers of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer $5,000 each for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding twelve (12) month period (“Due Diligence Costs”); provided that the Due Diligence Cap shall not apply at any other term or provision of this Agreement, Buyer will time that a Default shall have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, occurred and Buyer may terminate this Agreement without payment of any damages or penaltybe continuing.

Appears in 1 contract

Samples: Master Repurchase Agreement (Home Point Capital Inc.)

Due Diligence. Buyer will have thirty (a30) Seller covenants days from the date Buyer receives Seller’s Materials, (the “Review Period”) to conduct all of its inspections and due diligence and satisfy itself regarding the Property and this transaction. Xxxxx agrees to all indemnify and hold Seller harmless for any loss or damage to the Property or persons caused by Buyer or its agents arising out of such physical inspections of the terms Property, and this indemnity shall survive Closing or termination of this Agreement. Within five (5) days of the Effective Date of this Agreement, Seller shall provide, to the extent such items are in its possession, the items listed on Exhibit “B” (“Seller’s Materials”). Buyer may cancel this Agreement before the expiration of the Review Period for any reason in its sole discretion by delivering a cancellation notice to Seller and Escrow Agent prior to the expiration of the Review Period. If Buyer finds the Property to be acceptable in the Review Period, Buyer shall provide written notification to Seller of the waiver of its Review Period contingency prior to the expiration of the Review Period, in which case the Xxxxxxx Money shall be non-refundable unless Seller shall default hereunder, or in the event of a casualty or condemnation, subject to the provisions of Section 16 below. If this Agreement is not cancelled as set forth in above, the Xxxxxxx Money shall be non-refundable unless Seller shall default hereunder. If the Agreement is terminated, as permitted under this Section, except for any escrow cancellation fees charged by the Title Company and any liabilities under the first paragraph of Section 5.2(a). Between the date 5 of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(athose provisions stating otherwise (which will survive), BuyerSeller (after execution of such documents reasonably requested by Seller to evidence the termination hereof) shall return to Buyer its Xxxxxxx Money and Buyer will have absolutely no rights, acting through Buyer’s own personnelclaims or interest of any type in connection with the Property or this transaction, legal counselregardless of any alleged conduct by Xxxxx, accountants and other representatives and agents, shall have the full right Seller or anyone else. If Xxxxx fails to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review close this transaction at no fault of Seller, Buyer will be irrevocably deemed in default of this Agreement. Upon default by Buyer, Seller may, as its option, retain the Seller Subsidiary and the Seller Business Xxxxxxx Money as Buyer in its sole and absolute discretion deems necessary or appropriateexclusive remedy and declare this Agreement null and void, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by in which event Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s deemed to have cancelled this Agreement and relinquish all rights in and to the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the MergerProperty, or to negotiate revised terms, provisions or conditions for any of Seller may exercise its rights hereunder. The Review Period will be deemed satisfied if Buyer has deposited the transactions contemplated Xxxxxxx Money as required by this Agreement, including the MergerSection 4 hereof, and Buyer may terminate this Agreement without payment of any damages or penaltyagreement is not cancelled.

Appears in 1 contract

Samples: Purchase and Sale Agreement (AEI Income & Growth Fund 26 LLC)

Due Diligence. Seller warrants that all information supplied to Buyer by Seller is true and correct and is a fair and accurate representation of financial condition and results of operation of the Business. From Effective Date, Buyer shall, at its option, have 3 (aThree) business days (five days, if left blank) to request through Broker in writing, any of Seller’s business information, and financial documents necessary to verify all the Seller’s Business Information supplied by Seller covenants to Buyer, including a copy of any existing lease(s). Seller shall have 3 (Three) business days (five days, if left blank) to furnish all requested information and Buyer shall have 20 (Twenty) business days (seven days, if left blank) hereinafter referred to as “Due Diligence Period,” after receipt of said documents to verify this information. Buyer shall have right to cancel this transaction, in its sole discretion, if Seller fails to provide requested information, or if Buyer becomes aware that Business has not adhered to generally accepted business standards, or if there is a ten (10) percent negative variance from any of the financial information originally provided by Seller. Such notice of cancellation must be submitted in writing to Broker prior to expiration of Due Diligence Period, and all deposits shall be immediately returned to Buyer, and this Contract shall become null and void. Failure of Buyer to notify Broker within time specified shall constitute Buyer's waiver of this provision. Buyer agrees to return all information supplied by Seller for the Due Diligence Period at time of written cancellation. Until the closing of this transaction or indefinitely upon cancellation of this Contract, the parties shall not disclose or communicate any “Confidential Information” of prospective Buyer or Seller to any person or entity other than Buyer’s or Seller’s attorneys, accountants, or real estate and business consultants, nor use said Confidential Information for any purpose or reason other than negotiating and closing of the terms and provisions set forth in this Section 5.2(a)proposed transaction. Between the date of this Agreement and the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and For purpose of the Seller Subsidiarypreceding sentence, (b) meet “Confidential Information” means, but is not limited to, any information regarding Seller’s business methods, business policies, procedures, techniques, research or development projects or results, sales information of any kind, financial information of any kind including the price and discuss the Seller Business and the operations, history and prospects terms of the Seller Business with representatives proposed transaction, Seller’s accounts and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review customer lists, trade secrets or other knowledge or information possessed by Seller, which is not generally known to individuals outside of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiaryofficers, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Mergerconsultants, and Buyer may terminate this Agreement without payment of any damages or penaltyadvisors.

Appears in 1 contract

Samples: Certain Asset Purchase and Sale Contract (Epazz Inc)

Due Diligence. (a) Seller covenants From and agrees to all of the terms and provisions set forth in this Section 5.2(a). Between after the date of this Agreement hereof through and including 5 p.m. eastern time on August 15, 2011 (the Effective Time, in addition to Buyer’s rights provided by Section 5.1(a“Due Diligence Period”), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, Buyer shall have the full right to (a) examine examine, inspect and investigate the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be matters associated therewith, and, at Buyer’s sole expenseand absolute discretion, except that to determine whether the Property is acceptable to Buyer and to obtain all necessary internal approvals. Seller shall permit Buyer, its engineers, analysts, contractors and agents to conduct non-invasive physical inspections of the Property, including the structural, electrical and mechanical aspects of the Improvements, the interiors of all buildings, supports, site work, foundations, soil, subsurface soils, drainage, seismic and other geological and topographical matters, location of asbestos, toxic substances, hazardous materials or wastes, if any, and any other non-invasive investigations as Buyer deems prudent or desirable with respect to the physical condition of the Property. Provided Buyer shall restore any damage resulting to the Property by reason thereof, Buyer shall also have the right to conduct minimally invasive testing of the Property associated with any existing asbestos and lead paint located on the Property and any Phase II environmental assessments recommended by any Phase I environmental site assessment of the Property obtained by Buyer, provided Buyer shall provide seller with not less than three (3) business days prior written notice of such testing. Such investigations may be made by Buyer and/or its agents during any normal business hours. Buyer shall also have the right to investigate all matters relating to the zoning, use and compliance with other applicable laws, which relate to the use and occupancy of the Property. Seller shall cooperate to assist Buyer in completing such inspections and special investigations and Seller shall also make available to Buyer (in an office of the Seller’s property management company) for review and copying by Buyer (at Buyer’s expense) copies of any property information in Seller’s possession, provided Seller makes no representation or warranty as to the accuracy or completeness of such information. Notwithstanding anything contained in this Section 3.1, Seller Subsidiaryneed not deliver or make available to Buyer Seller’s employeesinternal confidential memoranda, attorney-client privileged materials and other confidential materials. Buyer acknowledges that any and all of the items provided by or on behalf of Seller that are not otherwise known by or available to the public are proprietary and confidential in nature and are delivered to Buyer solely to assist Buyer in determining the feasibility of purchasing the Property. Buyer agrees not to disclose such non-public Due Diligence Items, or any of the provisions, terms or conditions thereof, to any party outside of Buyer’s organization other than its agents, consultants, attorneys, representatives, officers prospective partners and accountants available their counsel and prospective lenders and their counsel. Such physical inspections and investigations of the Property shall be conducted only upon no less than twenty-four (24) hours’ notice (which may be telephonic) to Seller and shall be conducted at such times and in such a manner as to minimize any unreasonable disruption to tenants upon the Property. Seller shall have the right, but not the obligation, to accompany Buyer during such investigations and/or inspections. Anything contained herein to the contrary notwithstanding, Buyer shall not communicate (whether in person or by telephone) with any officials at environmental, zoning, assessment or other government agencies regarding the Property or the Seller by name without charge Seller’s prior written consent (which consent shall not be unreasonably withheld), with the exception that Buyer shall be entitled to obtain from the Government of York County, Virginia both a zoning letter from, and a response to a FOIA request for a “no-Building Code violations” letter. Seller (and, at Seller’s option and cost, Seller’s counsel) shall have the absolute right to be present at any meetings (including meetings conducted by telephone) with any governmental and quasi-governmental authorities and officials, including but not limited to any neighborhood commission members, whether at a formal or informal meeting. Purchaser shall provide copies of documents any correspondence sent to or received from such officials, within two (2) business days after receipt or dispatch, as the case may be. Purchaser shall not have the right to make any commitments to any such parties that are in any way binding on Seller or the Property. In addition, and notwithstanding the foregoing, Buyer and its agents and representatives shall: (a) not unreasonably disturb the tenants of the Improvements or unreasonably interfere with their use of the Real Property pursuant to their respective Leases; (b) not unreasonably interfere with the operation and maintenance of the Real Property; (c) not damage any part of the Property or any personal property owned or held by any tenant; (d) not injure or otherwise cause bodily harm to Seller, its agents, contractors and employees or any tenant; (e) promptly pay when due the costs of all tests, investigations and examinations done with regard to the Property; (f) not permit any liens to attach to the Property by reason of the exercise of its rights hereunder; (g) restore the Improvements and the surface of the Real Property to the condition in which the same was found before any such inspection or tests were undertaken; and (h) not reveal or disclose any information obtained during the Due Diligence Period concerning the Property to anyone outside Buyer’s organization other than its agents, consultants, attorneys, representatives, prospective partners and their counsel and prospective lenders and their counsel, except as may be required by applicable law. Buyer shall, at its sole cost and expense, comply with all applicable federal, state and local laws, statutes, rules, regulations, ordinances or policies in conducting its inspection of the Property and physical testing. Buyer shall, and does hereby agree to indemnify, defend and hold the Seller, its partners, officers, directors, employees, agents, attorneys and their respective successors and assigns, harmless from and against any and all claims, demands, suits, obligations, payments, damages, losses, penalties, liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) caused by reason of Buyer’s or Buyer’s agents’ actions taken in, on or about the Property in the exercise of the inspection right granted pursuant to this Section 3.1, including, without chargelimitation, (i) claims made by any tenant against Seller for personal injury or property damage resulting from Buyer’s wrongful entry into such tenant’s premises in connection with Buyer’s review of the Property; provided that, in no event shall Buyer be liable for any diminution in value of the Property resulting from or in connection with the findings of Buyer’s due diligence studies pursuant to this Section 3.1 and (ii) Buyer’s obligations pursuant to this Section 3.1. If Buyer shall obtain and maintain insurance from a creditworthy company with a policy limit of not less than Two Million Dollars ($2,000,000.00) for the results purposes of its obligations and liabilities under this Section 3.1, and shall deliver to Seller a certificate of such due diligence review or meetings are not entirely satisfactory or acceptable insurance naming the Seller as an additional insured, prior to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding physical inspections of the Property. This Section 3.1 shall survive the Close of Escrow and/or any other term or provision termination of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penalty.

Appears in 1 contract

Samples: Purchase and Sale Agreement And (Paladin Realty Income Properties Inc)

Due Diligence. Seller acknowledges that Buyer or any third party designated by Buyer (aincluding Buyer’s regulators) has the right to perform continuing due diligence reviews with respect to the Mortgage Loans and Seller Parties, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior notice unless an Event of Default shall have occurred, in which case no notice is required, to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of Seller. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may purchase Mortgage Loans from Seller based solely upon the information provided by Seller to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise regenerating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer and any third party underwriter in this Section 5.2(a). Between the date of this Agreement connection with such underwriting, including, but not limited to, providing Buyer and the Effective Timeany third party underwriter with access to any and all documents, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of Seller and of agreements, instruments or information relating to such Mortgage Loans in the Seller Subsidiarypossession, (b) meet and discuss or under the Seller Business and the operationscontrol, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except further agrees that Seller shall make Seller’s pay all out-of-pocket costs and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined expenses incurred by Buyer in connection with Buyer’s reasonable discretionactivities pursuant to this Section 17 (“Due Diligence Costs”); provided, thenhowever, notwithstanding any other term or provision of this Agreement, that Seller shall not be responsible for Buyer’s due diligence costs incurred in connection with the initial due diligence conducted by Buyer will have no duty or obligation of any kind or nature whatsoever prior to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydate hereof.

Appears in 1 contract

Samples: Master Repurchase Agreement (Guild Holdings Co)

Due Diligence. (a) The Seller covenants acknowledges that the Purchaser has the right to perform continuing due diligence and agrees other reviews with respect to all of the terms and provisions set forth in this Section 5.2(a). Between the date of this Agreement Mortgage Loans and the Effective TimeSeller for purposes of verifying compliance with the representations, warranties, covenants, agreements and specifications made hereunder, under the Mortgage Loan Documents or otherwise, and the Seller agrees that, upon reasonable (but no less than one (1) Business Day’s) prior notice, unless an Event of Default shall have occurred, in addition which case no notice is required, to Buyer’s rights provided by Section 5.1(a)the Seller, Buyeras applicable, acting through Buyer’s own personnelthe Purchaser or its authorized representatives shall be permitted during normal business hours to examine, legal counselinspect, accountants and other representatives make copies and agentsextracts of, shall have the full right to (a) examine the offices, properties, equipment, invoices, customer records, agreement books and records of the Seller and any and all documents, records, agreements, instruments or information relating to the Mortgage Loans in the possession or under the control of the Seller Subsidiaryand any Affiliates of the Seller. The Seller shall make available to the Purchaser a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Seller, (b) meet and discuss the Seller Business Mortgage Loans and the operations, history Seller’s books and prospects records. The Seller shall also make available to the Purchaser any accountants or auditors of the Seller Business to answer any questions or provide any documents as the Purchaser may require. The Seller shall also cause each servicer or trustee with representatives and employees respect to such Mortgage Loans to cooperate with the Purchaser by permitting the Purchaser to conduct due diligence reviews of Seller and files of each such servicer or trustee relating to the Seller Subsidiary and (c) otherwise perform Mortgage Loans to the extent such reviews are permitted under the terms of the Mortgage Loan Documents. The Purchaser, at its option, has the right at any time to conduct a partial or complete due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary on some or appropriate, including a due diligence review all of the ContractsMortgage Loans purchased in the Transaction, assetsincluding, rightswithout limitation, liabilities ordering new credit reports and Intellectual Property of new appraisals on the related Mortgaged Properties and otherwise re–generating the information used to originate such Mortgage Loans. The Purchaser may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Seller . Buyer’s representatives and agents, agrees to reasonably cooperate with the assistance of Seller’s personnel Purchaser and any third party underwriter in connection with such underwriting, including, but not limited to, providing the personnel Purchaser and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller SubsidiarySeller. The Seller shall promptly provide pay all out–of–pocket costs and expenses incurred by Purchaser in connection with the Purchaser’s activities pursuant to Buyer copies of all documents related to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltySection 19.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (CBRE Realty Finance Inc)

Due Diligence. The Seller acknowledges that Buyer has the right to perform continuing Due Diligence Reviews with respect to the Mortgage Loans (aother than Mortgage Loans that were acquired by the Seller from the Buyer or its Affiliates) and the Seller, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and the Seller agrees that upon reasonable prior notice unless an Event of Default shall have occurred, in which case no notice is required, to the Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Mortgage Files and any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession or under the control of the Seller and/or the Custodian. The Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Mortgage Files and the Mortgage Loans. Without limiting the generality of the foregoing, the Seller acknowledges that Buyer may purchase Mortgage Loans from the Seller based solely upon the information provided by the Seller to Buyer in the Purchased Mortgage Loan Schedule and the representations, warranties and covenants contained herein, and agrees that Buyer, at its option, has the right at any time to conduct a partial or complete Due Diligence Review on some or all of the terms Mortgage Loans purchased in a Transaction, including, without limitation, ordering broker’s price opinions, new credit reports and provisions set forth new appraisals on the related Mortgaged Properties and otherwise re-generating the information used to originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon third party underwriter to perform such underwriting. The Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Mortgage Loans in the possession, or under the control, of the Seller. The Seller further agrees that the Seller shall pay all out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 5.2(a27 (“Due Diligence Costs”) with respect to the Mortgage Loans (other than Mortgage Loans that were acquired by the Seller from the Buyer or its Affiliates). Between ; provided, that such Due Diligence Costs shall not exceed the date Due Diligence Cap per Transaction unless a Default or Event of this Agreement and the Effective TimeDefault shall have occurred, in addition to Buyer’s rights provided by Section 5.1(a), Buyer, acting through Buyer’s own personnel, legal counsel, accountants and other representatives and agents, which event Buyer shall have the full right to (a) examine perform due diligence, at the offices, properties, equipment, invoices, customer records, agreement books and records sole expense of Seller and of the Seller Subsidiary, (b) meet and discuss the Seller Business and the operations, history and prospects of the Seller Business with representatives and employees of Seller and the Seller Subsidiary and (c) otherwise perform such due diligence review of Seller, the Seller Subsidiary and the Seller Business as Buyer in its sole and absolute discretion deems necessary or appropriate, including a due diligence review of the Contracts, assets, rights, liabilities and Intellectual Property of Seller . Buyer’s representatives and agents, with the assistance of Seller’s personnel and the personnel of the Seller Subsidiary, will prepare an inventory of all assets and other Intellectual Property of Seller and the Seller Subsidiary. Seller shall promptly provide to Buyer copies of all documents related without regard to the Seller Business that Buyer reasonably requests. Buyer and Buyer’s representatives and agents shall be permitted to meet with representatives and employees of Seller individually and as a group. The due diligence review by Buyer will be at Buyer’s sole expense, except that Seller shall make Seller’s and the Seller Subsidiary’s employees, representatives, officers and accountants available to Buyer without charge and shall provide copies of documents to Buyer without charge. If the results of such due diligence review or meetings are not entirely satisfactory or acceptable to Buyer for any reason whatsoever, as determined by Buyer in Buyer’s reasonable discretion, then, notwithstanding any other term or provision of this Agreement, Buyer will have no duty or obligation of any kind or nature whatsoever to proceed with or to consummate any of the transactions contemplated by this Agreement, including the Merger, or to negotiate revised terms, provisions or conditions for any of the transactions contemplated by this Agreement, including the Merger, and Buyer may terminate this Agreement without payment of any damages or penaltydollar limitation set forth herein.

Appears in 1 contract

Samples: Master Repurchase Agreement (Taberna Realty Finance Trust)

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