Common use of Inspection and Due Diligence Review Clause in Contracts

Inspection and Due Diligence Review. (a) Parent shall have the right, in its sole discretion, until 5:00 p.m. EST on the day which is the twenty-third (23rd) day following the Effective Date, to satisfy itself, in its sole and absolute discretion, of all matters relating to the Merger Transactions, including, but not limited to the condition and extent of the Properties and all matters related to the organization of the Company and any entities owned and/or controlled by the Company (“Due Diligence Period”). Subject to the prior termination of this Agreement, during the term of this Agreement, the Company Parties shall cooperate and provide Parent with reasonable and continuing access to the Properties upon commercially reasonable Notice to the Company for the purpose of Parent’s inspection and due diligence review. In connection with such review, during normal business hours during the Due Diligence Period, Parent shall be afforded the opportunity to review reasonably available records, including non-proprietary financial reports, the instruments evidencing the Contracts pertaining to the Hotels which are in or under the Company’s control and relate to the operation of the Hotels upon reasonable Notice, except that the Company Parties shall have no obligation to deliver or make available to Parent, and Parent shall have no right to review, the Excluded Assets and the Excluded Documents. Neither Parent nor any of its employees, agents or representatives shall contact or otherwise discuss this transaction or the operation of the Hotels with any on-site employees of the Hotels; provided, however, that Parent may meet with any Hotel’s general manager upon commercially reasonable Notice to the Company but, if required by the Company, only in the presence of the Company’s representative. At any time during the Due Diligence Period, Parent shall have the right, in its sole and absolute discretion, to terminate this Agreement by written notice to the Company.

Inspection and Due Diligence Review. (a) Parent 4.3.1 Purchaser shall have the right, in its sole discretion, until 5:00 p.m. EST Washington, DC time on the day which is the twenty-third (23rd) 30th day following the Effective Date, to satisfy itself, in its sole and absolute discretion, of all matters relating to the Merger Transactions, including, but not limited as to the condition and extent of the Properties and all matters related to the organization of the Company and any entities owned and/or controlled by the Company Property (“Due Diligence Period”). Subject to the prior termination of this Agreement, during the term of this Agreement, the Company Parties Sellers shall cooperate and provide Parent Purchaser with reasonable and continuing access to the Properties Real Property or any due diligence materials required hereunder upon commercially reasonable one (1) business day prior Notice to the Company Sellers for the purpose of ParentPurchaser’s inspection and due diligence review. In connection with such review, Seller shall deliver to Purchaser or make available to Purchaser at the respective Hotel during normal business hours during the Due Diligence Period, Parent shall be afforded the opportunity to review reasonably available all records, including non-proprietary financial reports, the instruments evidencing the Contracts pertaining to the Hotels and any other documents, which are in or under the CompanySellers’ or Sellers’ property manager’s control and relate to the operation of the Hotels upon reasonable Noticeor any other matter affecting the Property (“Due Diligence Materials”), except that the Company Parties Sellers shall have no obligation to deliver or make available to ParentPurchaser, and Parent Purchaser shall have no right to review, the Excluded Assets and the Excluded Documents. Neither Parent Purchaser nor any of its employees, agents or representatives shall contact or otherwise discuss this transaction or and /or the operation of the Hotels with any on-site employees of the Hotels; provided, however, that Parent Purchaser may meet with any Hotel’s general manager General Manager (or other designee) upon commercially reasonable not less than one (1) business day’s Notice to the Company but, if required by the Company, Sellers but only in the presence of the Company’s representative. At any time during the Due Diligence Period, Parent shall have the right, in its sole and absolute discretion, to terminate this Agreement by written notice to the CompanySellers’ representative (unless waived).

Inspection and Due Diligence Review. (a) Parent 4.5.1 Purchaser shall have the right, in its sole discretion, right from and after the Effective Date until 5:00 p.m. EST Eastern time on the day which is the twenty-third May 31, 2022 (23rd) day following the Effective Date“Due Diligence Period”), to satisfy itself, in its sole and absolute discretion, of all matters relating to the Merger Transactions, including, but not limited as to the condition and extent of the Properties Property and all matters related the Personal Property and the suitability thereof for Purchaser’s purposes and as to the organization availability of all necessary financing for the Closing and payment of the Company Purchase Price. Unless and any entities owned and/or controlled by until this Agreement is terminated before the Company (“end of the Due Diligence Period”). Subject to the prior termination of this Agreement, during the term of this Agreement, the Company Parties Seller shall cooperate and provide Parent Purchaser with reasonable and continuing access to the Properties Property at reasonable times and upon commercially reasonable Notice notice to the Company Seller (which notice may be delivered by e-mail to [redacted]) for the purpose of ParentPurchaser’s inspection and due diligence review. In connection with such review, during normal business hours during Prior to the expiration of the Due Diligence Period, Parent shall be afforded the opportunity to review reasonably available records, including non-proprietary financial reports, the instruments evidencing the Contracts pertaining to the Hotels which are in or under the Company’s control and relate to the operation of the Hotels upon reasonable Notice, except that the Company Parties shall have no obligation to deliver or make available to Parent, and Parent shall have no right to review, the Excluded Assets and the Excluded Documents. Neither Parent neither Purchaser nor any of its employees, agents or representatives Purchaser’s Representatives shall contact or otherwise discuss this transaction or and/or the operation of the Hotels Hotel or the Property with any on-site employees of Seller or Tenant except Exxxxx Xxxx and Pxxxx Xxxx, or any contractors, vendors, or other third parties who contract for services or supplies with Seller or Operator, without first having obtained the Hotels; provided, however, that Parent may meet with any Hotel’s general manager upon commercially reasonable Notice to prior written consent of Seller. Following the Company but, if required by the Company, only in the presence expiration of the Company’s representative. At any time during the Due Diligence Period, Parent and assuming Purchaser does not terminate this Agreement pursuant to the following sentence, the restriction on communications in the immediately preceding sentence shall be of no force and effect and Purchaser shall have the right to contact anyone Purchaser may deem necessary or desirable in furtherance of Purchaser’s acquisition of the Property and Personal Property. At any time prior to the end of the Due Diligence Period, Purchaser shall have the right, in its sole discretion, by providing Notice to Seller and absolute discretionEscrow Agent, to terminate this Agreement by written notice and, upon receipt of such Notice, Escrow Agent shall deliver the Deposit to Purchaser, whereupon this Agreement shall terminate and, except for those obligations which expressly survive termination of this Agreement, neither party shall have any further obligation to the Companyother. If Purchaser does not deliver such Notice to terminate the Agreement by the end of the Due Diligence Period, Purchaser shall be deemed to have elected to proceed hereunder.

Inspection and Due Diligence Review. (a) Parent Purchaser shall have the right, in its sole discretion, until 5:00 3:00 p.m. EST California time on the day which is the twenty-third (23rd) day following the Effective DateApril 29, 2010, or such earlier date as Purchaser shall elect in writing, to satisfy itself, in its sole and absolute discretion, of all matters relating to the Merger Transactions, including, but not limited as to the condition and extent of the Properties and all matters related to Real Property (the organization of the Company and any entities owned and/or controlled by the Company (“Due Diligence Period”). Subject to the prior termination of this Agreement, during the term of this Agreement, the Company Parties Due Diligence Period Seller shall cooperate and provide Parent Purchaser with reasonable and continuing access to the Properties Land (subject to any restrictions under the Ground Lease) upon commercially reasonable one (1) business day prior Notice to the Company Seller for the purpose of ParentPurchaser’s inspection and due diligence review. In connection with such review, during normal business hours during the Due Diligence Period, Parent Purchaser shall be afforded the opportunity to review reasonably available books and records, including the Ground Lease and non-proprietary financial reports, the instruments evidencing the Contracts reports pertaining to the Hotels Land which are in Seller’s possession or under the Company’s control and relate to the operation of the Hotels its control, upon reasonable Notice, except that the Company Parties Seller shall have no obligation to deliver or make available to ParentPurchaser, and Parent Purchaser shall have no right to review, the Excluded Assets Documents and the Excluded DocumentsProprietary Information. Neither Parent Except as otherwise authorized by Seller pursuant to this Section 4.3, neither Purchaser nor any of its employees, agents or representatives shall contact or otherwise discuss this transaction or and /or the operation of the Hotels Hotel with any on-site employees of the Hotels; provided, however, that Parent may meet Hotel or otherwise contract any governmental authority with any Hotel’s general manager upon commercially reasonable Notice respect to the Company butReal Property, if required by in each case without the Company, written consent of Seller and then only in the presence of a representative of the Company’s representative“Tenant” under the Ground Lease. At Purchaser may, at its sole cost and expense, engage a third-party Certified Public Accountant to perform audits of the books and records of the Land, balance sheets as of December 31, 2009 and December 31, 2008 and the related statements of operations and cash flows for the Land, for the years ended December 31, 2009 and December 31, 2008, which audits shall include all disclosures required by generally accepted accounting principles and Securities and Exchange Commission regulations. Seller shall use commercially reasonable efforts to cooperate in connection with the performance of such audits and shall provide or cause to be provided any time during information reasonably requested by the accountants relating to such balance sheets, related statements of operations and cash flows for the Land. In connection with such audits, Seller shall provide or cause to be provided to the accountants performing the audits a representation letter acceptable to Seller in accordance with American Institute of Public Accountants professional standards. During the Due Diligence Period, Parent Purchaser shall also have the rightopportunity to conduct a Phase I environmental audit/study, a property condition report, zoning report and such other studies desired by Purchaser (subject to Seller’s consent rights set forth herein) of the Land and the Land Rights, provided such Phase I environmental audit/study is not invasive or intrusive. Any environmental audit/study proposed to be undertaken by Purchaser shall be subject to Seller’s written approval prior to the commencement thereof, which approval shall not be unreasonably withheld. As a condition to any such consent, Purchaser shall obtain and maintain such public liability insurance in an amount of Two Million Dollars ($2,000,000) affecting the Land and the Land Rights, naming Seller as an additional insured. Purchaser, at all times, will conduct such due diligence in compliance with all applicable laws and in a manner so as to not cause damage, loss, cost or expense to Seller, the Real Property or the tenants or guests of the Real Property, and without unreasonably interfering with or disturbing any employee, tenant or guest at the Real Property. Purchaser shall not reveal to any governmental agency or any other third party (other than Purchaser’s employees, agents, attorneys, trustees, lenders and advisors) not approved by Seller the results of or any other information acquired pursuant to its inspections. Purchaser will promptly restore any damage to the Real Property caused by Purchaser’s inspection to its condition immediately preceding such inspections and examinations and will keep the Real Property free and clear of any mechanic’s liens or materialmen’s liens in connection with such inspections and examinations. The cost of the inspections and tests undertaken pursuant to this Section 4.3 shall be borne solely by Purchaser. Purchaser shall indemnify, protect, defend, and hold Seller, Seller’s lenders, Tarsadia Hotels, and their affiliates, owners, agents and employees harmless from and against any obligation, liability, claim (including any claim for damage to property or injury to or death of any persons), lien or encumbrance, loss, damage, cost or expense, including reasonable attorneys’ fees, whether or not legal proceedings are instituted, arising from the acts or omissions of Purchaser or its agents, employees or contractors occurring in connection with, or as a result of, such inspections, tests or examinations of the Real Property, except to the extent resulting from Seller’s gross negligence or intentional misconduct. Purchaser shall in no event be responsible under this Section 4.3 for any condition already existing on the Real Property prior to the time of the inspections, except and only to the extent that Purchaser or the inspections exacerbate such existing condition. Purchaser covenants and agrees that all such information and materials disclosed and/or delivered to it by Seller, or Seller’s agents, employees and representatives, are confidential and proprietary information, and that Purchaser shall hold the same in strict confidence, and shall not disclose the same to anyone other than its agents, employees and advisors on a “need-to-know” basis subject to the confidentiality restrictions set forth herein. Purchaser also agrees that, in its sole the event the transactions contemplated in this Agreement are not consummated as provided herein or Purchaser terminates this Agreement prior to the expiration of the Due Diligence Period, Purchaser shall return all such information and absolute discretiondocumentation, and all copies thereof, to terminate Seller promptly upon Seller’s request and certify to Seller that it has destroyed all materials prepared by or for Purchaser and/or its representatives utilizing any such information and documentation. Except as expressly provided in this Agreement by written notice Agreement, Seller makes no representations or warranties as to the Companytruth, accuracy or completeness of any third-party materials, data or other information, if any, supplied to Purchaser in connection with Purchaser’s inspection of the Real Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in Seller’s possession). It is the parties’ express understanding and agreement that any such materials are to be provided only for Purchaser’s convenience in making its own examination and determination prior to the expiration of the Due Diligence Period as to whether it wishes to purchase the Land and the Land Rights, and, in doing so, Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of the Real Property and not on any third-party materials supplied by Seller. Purchaser expressly disclaims any intent to rely on any such third-party materials provided to it by Seller in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information. The obligations of Purchaser under this Section 4.3 (including its indemnification obligations) shall survive the Close of Escrow or the termination of this Agreement.