Common use of Buyer’s Due Diligence Clause in Contracts

Buyer’s Due Diligence. Subject to the terms of that certain Access and Indemnity Agreement between Buyer and Seller, dated March 13, 2012, Buyer acknowledges that commencing on the execution of and delivery of the Access and Indemnity Agreement between Buyer and Seller and continuing until 5:00 p.m. Eastern Time on April 5, 2012 (the “Due Diligence Period”), Buyer and Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall have the right to conduct examinations, inspections, testing, studies and/or investigations (herein collectively called the “Due Diligence”) of the Property and information regarding the Property. If Buyer is satisfied with the results of its Due Diligence (including its review of the Title Documents), in Buyer's sole and absolute discretion, Buyer shall deliver written notice of such satisfaction (an "Approval Notice") to Seller at any time prior to 5:00 p.m. Eastern Time on the last day of the Due Diligence Period. In the event Buyer fails to timely deliver an Approval Notice or in the event Buyer delivers written notice to Seller of its election to terminate this Agreement on or prior to the expiration of the Due Diligence Period, this Agreement shall terminate, and, in the event of such termination, neither Seller nor Buyer shall have any liability hereunder except for those obligations which expressly survive the termination of this Agreement and Escrow Agent shall promptly return the Deposit to Buyer without further instruction from Seller. In the event Buyer delivers an Approval Notice on or before the last day of the Due Diligence Period, Buyer shall be deemed to have elected to proceed with the Transaction pursuant to the terms and conditions of this Agreement. Buyer and Seller each acknowledge and agree that Buyer shall have no right after the expiration of the Due Diligence Period to terminate this Agreement pursuant to this Article 4. Notwithstanding the foregoing, Buyer and Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall be permitted to continue to conduct further Due Diligence on and inspections of the Property until the Closing subject to the terms and conditions of this Agreement. Within three (3) business days following the Effective Date, Seller shall deliver to Buyer, or make available to Buyer for review at the leasing office of the Property, those items listed on Exhibit P attached hereto that are in Seller's possession or control. Such deliveries are provided without any representation or warranty by Seller, including, without limitation, any warranty as to accuracy or completeness. Buyer has informed Seller that Buyer is required by law to complete, with respect to certain matters relating to the Property, an audit commonly known as a "3-14" Audit (“Buyer's 3-14 Audit”). Seller further agrees that Seller shall make Manager available to Buyer for interviews regarding the Property; provided that Seller makes no representations or warranties with regard to such interviews.

Buyer’s Due Diligence. Subject to If not already commenced as of the terms of that certain Access and Indemnity Agreement between Buyer and Seller, dated March 13, 2012date hereof, Buyer acknowledges that commencing on shall promptly following the execution of this Agreement, and delivery subject to Section 5.1 hereof, commence and thereafter diligently pursue to completion its (i) on-site due diligence visits of the Access properties, (ii) investigation of the condition of the Business and Indemnity Agreement between Buyer the Assets, including but not limited to the Inspection Reports, and Seller (iii) evaluation of the books and continuing until 5:00 p.m. Eastern Time on April 5records of the Business (collectively, 2012 (the “Buyer’s Due Diligence PeriodInvestigation”), . Buyer agrees to provide the Seller with a complete and correct copy of all Inspection Reports received by Buyer in connection with Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall have the right to conduct examinations, inspections, testing, studies and/or investigations (herein collectively called the “Due Diligence”) of the Property and information regarding the Property. If Buyer is satisfied with the results of its ’s Due Diligence Investigation. Any fact, matter, condition, deficiency, encumbrance, or encroachment reflected or referenced in any Inspection Report which is not objected to in writing by Buyer within thirty (including its review of the Title Documents), in 30) days after Buyer's sole and absolute discretion, Buyer shall deliver written notice ’s receipt of such satisfaction (an "Approval Notice") to Seller at any time prior to 5:00 p.m. Eastern Time on the last day of the Due Diligence Period. In the event Buyer fails to timely deliver an Approval Notice or in the event Buyer delivers written notice to Seller of its election to terminate this Agreement on or prior to the expiration of the Due Diligence Period, this Agreement shall terminate, and, in the event of such termination, neither Seller nor Buyer shall have any liability hereunder except for those obligations which expressly survive the termination of this Agreement and Escrow Agent shall promptly return the Deposit to Buyer without further instruction from Seller. In the event Buyer delivers an Approval Notice on or before the last day of the Due Diligence Period, Buyer Inspection Report shall be deemed to have elected to proceed with the Transaction pursuant to the terms and conditions of this Agreement. Buyer and Seller each acknowledge and agree that Buyer shall have no right after the expiration of the Due Diligence Period to terminate this Agreement pursuant to this Article 4accepted by Buyer. Notwithstanding the foregoing, if (i) the information found during the Buyer’s Due Diligence Investigation, or through its review and evaluation of the Schedules, would be reasonably deemed to have a Material Adverse Effect on the overall transaction contemplated hereby, or (ii) Buyer and Buyer's engineersSeller are not able to reach an agreement as to the content of any Schedule as to which Buyer has raised a timely objection pursuant to Section 3.19 within the applicable thirty (30) day time period, architectsthen, employeesin either case, agentsBuyer may elect, lendersby written notice delivered to the Seller, consultantseither to (a) terminate this Agreement as set forth herein and neither party shall have any further obligation to the other except as may be expressly provided herein, contractors, attorneys and representatives shall be permitted to or (b) continue to conduct further Due Diligence on Closing and inspections of negotiate in good faith with the Property until the Closing subject Seller to the terms and conditions of this Agreement. Within three (3) business days following the Effective Date, Seller shall deliver reach a resolution to Buyer, or make available to Buyer for review at ’s and Seller’s reasonable satisfaction (except that such resolution shall not include a reduction in the leasing office of the Property, those items listed on Exhibit P attached hereto that are in Seller's possession or control. Such deliveries are provided without any representation or warranty by Seller, including, without limitation, any warranty as to accuracy or completeness. Buyer has informed Seller that Buyer is required by law to complete, with respect to certain matters relating to the Property, an audit commonly known as a "3-14" Audit (“Buyer's 3-14 Audit”Purchase Price). Seller further agrees that Seller shall make Manager available to Buyer for interviews regarding the Property; provided that Seller makes no representations or warranties with regard to such interviews.

Buyer’s Due Diligence. Subject to The “Due Diligence Period” shall be defined as the terms of that certain Access and Indemnity Agreement between Buyer and Seller, dated March 13, 2012, Buyer acknowledges that commencing on the execution of and delivery of the Access and Indemnity Agreement between Buyer and Seller and period continuing until the earlier of: (a) 5:00 p.m. Eastern Time on April 5June 21, 2012 2019, or (b) the “Due Diligence Period”), date on which this Agreement is terminated by Buyer and Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives pursuant to this Section 4.1. Buyer shall have the right to conduct conduct, its examinations, inspections, testing, studies and/or investigations in accordance with and subject to the terms and conditions of this Agreement (herein collectively called the “Due Diligence”) of the each Seller’s Individual Property and information regarding each Seller’s Individual Property until the Propertydate this Agreement is terminated or Closing occurs. If Buyer is not satisfied with the results of its Due Diligence (including its review of the Title Documents)) for all of the Property, or if Buyer elects otherwise not to proceed with the Transactions in Buyer's ’s sole and absolute discretion, for no reason or any reason, Buyer shall deliver written notice of such satisfaction (an "Approval Notice") to Seller may elect at any time prior to 5:00 p.m. Eastern Time on the last day of the Due Diligence Period. In the event Buyer fails Period to timely deliver an Approval Notice or in the event Buyer delivers written notice to Seller of its election to (i) terminate this Agreement on or prior with respect to the expiration all of the Due Diligence Period, this Agreement shall terminateProperty and all Sellers by written notice thereof to Sellers given in accordance with the provisions of Section 13.9 hereof, and, in the event of if there is such a termination, neither Seller Sellers nor Buyer shall have any liability hereunder except for those obligations which that expressly survive the termination of this Agreement Agreement, and Escrow Agent shall promptly return the Deposit to Buyer without further instruction from Seller. In the event Buyer delivers an Approval Notice on or before the last day of the Due Diligence Period, Buyer shall be deemed entitled to have elected to the prompt return of the Deposit, or (ii) proceed with the Transaction - -6 - Transactions pursuant to the terms and conditions of this Agreement, whereupon the Deposit shall be deemed non-refundable to Buyer (except as expressly set forth elsewhere in this Agreement) but applicable to the Purchase Price at Closing. If Buyer does not notify Sellers in writing of its election to terminate this Agreement prior to the end of the Due Diligence Period, (A) Buyer shall no longer have any right to terminate this Agreement under this Section 4.1; (B) Buyer shall deposit in immediately available funds by wire transfer the amount of Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) (the “Second Deposit”) with Escrow Agent not later than 5:00 p.m. (Eastern time) on the next Business Day following the expiration of the Due Diligence Period pursuant to Section 2.1 hereof, and (C) except as otherwise expressly provided in this Agreement, the Deposit shall be non-refundable. Buyer acknowledges and Seller each acknowledge and agree agrees that Buyer shall have no right after the expiration of the Due Diligence Period to terminate this Agreement pursuant to this Article 4Section 4.1. Notwithstanding the foregoingBuyer acknowledges that, Buyer and Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall be permitted to continue to conduct further Due Diligence on and inspections as of the Property until the Closing subject to the terms and conditions of this Agreement. Within three (3) business days following the Effective Date, Seller shall deliver to Buyer, or make available to Buyer for review at the leasing office of the Property, those items listed on Exhibit P attached hereto that are in Seller's possession or control. Such deliveries are provided without any representation or warranty by Seller, including, without limitation, any warranty as to accuracy or completeness. Buyer has informed Seller that Buyer is required by law no other right pursuant to complete, with respect this Section 4.1 to certain matters relating to terminate the Property, an audit commonly known as a "3-14" Audit (“Buyer's 3-14 Audit”). Seller further agrees that Seller shall make Manager available to Buyer for interviews regarding the Property; provided that Seller makes no representations or warranties with regard to such interviewsAgreement.

Buyer’s Due Diligence. Subject to the terms of that certain Access and Indemnity Agreement between Buyer and Seller, dated March 13, 2012, CONDITION OF THE PROPERTY Buyer acknowledges that commencing on prior to the execution of and delivery of the Access and Indemnity this Agreement between Buyer and Seller and continuing until 5:00 p.m. Eastern Time for a period which will expire on April 5September 30, 2012 1996 (the “"Due Diligence Period”"), Buyer has conducted, and Buyer's engineersshall continue to conduct, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall have the right to conduct its examinations, inspections, testing, studies and/or investigations (herein collectively called the “"Due Diligence”") of the Property and information regarding the Property. If In connection with Buyer's Due Diligence, Seller shall deliver to Buyer is satisfied with the results of its Due Diligence (including its review on or before September 23, 1996, copies of the Title Documentsexecuted estoppel certificates, the originals of which are to be delivered to Buyer at Closing pursuant to Section 6.3(e); provided, however, that in the event Seller fails to deliver all such estoppel certificates by such date, Buyer's sole and absolute discretion, Buyer remedy shall deliver written notice be an extension of such satisfaction (an "Approval Notice") to Seller at any time prior to 5:00 p.m. Eastern Time on the last day end of the Due Diligence Period. In , with respect only to Buyer's review of such outstanding estoppel certificates, by one business day for each business day after September 23, 1996 that Seller has failed to deliver all such estoppel certificates; provided, further, however, that if Seller has failed to deliver such estoppel certificates by October 7, 1996, then this agreement shall terminate without further action of the event parties and Seller and Buyer fails shall be relieved of all of their obligations hereunder, except for those provisions that by their terms survive the termination of this Agreement unless, prior to timely deliver an Approval Notice or in the event expiration of said date, Buyer delivers to Seller written notice to Seller of its election to terminate have this Agreement remain in effect. Notwithstanding the foregoing, the Due Diligence Period, with respect to all matters other than Buyer's review of such outstanding estoppel certificates, shall expire on or prior September 30, 1996, and, with respect to Buyer's review of such outstanding estoppel certificates, shall expire no later than October 14, 1996. This Agreement shall terminate without further action of the parties upon the expiration of the Due Diligence Period, Period unless prior thereto Buyer delivers to Seller written notice of its election to have this Agreement shall terminate, and, remain in the event of such termination, neither Seller nor Buyer shall have any liability hereunder except for those obligations which expressly survive the termination of effect. If this Agreement and Escrow Agent shall promptly return remains in effect following the Deposit to Buyer without further instruction from Seller. In the event Buyer delivers an Approval Notice on or before the last day expiration of the Due Diligence PeriodPeriod as a result of Buyer's election, Buyer shall be deemed to have elected to proceed with the Transaction pursuant to the terms and conditions of this Agreement. then Buyer and Seller each acknowledge and agree that Buyer shall have no right additional period after the expiration of the Due Diligence Period to terminate this Agreement pursuant to this Article 4. Notwithstanding the foregoing, Buyer and Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall be permitted to continue to conduct further physical Due Diligence on and inspections of the Property until the Closing subject to the terms and conditions of this Agreement. Within three (3) business days following the Effective Date, Seller shall deliver to Buyer, or make available to Buyer for review at the leasing office of the Property, those items listed on Exhibit P attached hereto that are in Seller's possession or control. Such deliveries are provided without any representation or warranty by Seller, including, without limitation, any warranty as to accuracy or completeness. Buyer has informed Seller that Buyer is required by law to complete, with respect to certain matters relating to the Property, an audit commonly known as a "3-14" Audit (“Buyer's 3-14 Audit”). Seller further agrees that Seller shall make Manager available to Buyer for interviews regarding the Property; provided that . At Closing and as a material inducement for Seller makes no representations or warranties with regard to such interviewsconsummate the Transaction, Buyer will deliver a certification in the form of Exhibit E attached hereto and incorporated herein by this reference.

Buyer’s Due Diligence. Subject to the terms of that certain Access and Indemnity Agreement between Buyer and SellerExcept for on-site due diligence visits, dated March 13, 2012, Buyer acknowledges that commencing on which shall be commenced following the execution of this Agreement, and delivery completed by Buyer not later than five (5) business days prior to the Closing Date, as of the Access Date of this Agreement, the Buyer has received full access to all properties, books and Indemnity Agreement between records of the Business and the Buyer has had a full opportunity to investigate the condition of the Business and the Assets, including but not limited to the Inspection Reports. The Buyer has provided to the Seller a complete and correct copy of all Inspection Reports received as of the date hereof. Any fact, matter, condition, deficiency, encumbrance, or encroachment reflected or referenced in an Inspection Report is hereby deemed accepted by the Buyer and Seller the Buyer waives any claim to indemnification or any other remedy that it may have related thereto against the Seller. The parties acknowledge that Buyer, at its sole cost and continuing until 5:00 p.m. Eastern Time on April 5expense, 2012 (will as soon as reasonably practicable following the “Due Diligence Period”), Buyer and Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall have the right to conduct examinations, inspections, testing, studies and/or investigations (herein collectively called the “Due Diligence”) execution hereof arrange for inspections of the Property and information regarding the Property. If Buyer is satisfied with the results of its Due Diligence (including its review various improvements at each of the Title Documents)locations set forth on Exhibit A, in Buyer's sole and absolute discretion, Buyer which inspections shall deliver written notice of such satisfaction be completed as soon as reasonably practicable but not less than five (an "Approval Notice"5) to Seller at any time business days prior to 5:00 p.m. Eastern Time on the last day Closing Date. Buyer agrees to accept liability for the cost to repair, replace or remediate any fact, matter, condition or deficiency which may be found during the Buyer’s on-site due diligence visits up to 1% of the Due Diligence Period. In Purchase Price, provided that if said cost exceeds 1% of the event Purchase Price, then Seller will be liable for the next 1% of the Purchase Price, and if said cost is more than that the parties agree to negotiate in good faith to reach a resolution and Buyer fails to timely deliver an Approval Notice or in the event Buyer delivers written notice to Seller of its election to may terminate this Agreement on or prior to only in the expiration absence of such resolution. For the avoidance of doubt, (i) Buyer’s liability for the first 1% of the Due Diligence PeriodPurchase Price includes costs associated with the 2,000-gallon underground storage tank (UST) at Sierra View Memorial Park, this Agreement shall terminateCrematory & Mortuary, and, in and (ii) Seller’s liability for the event of such termination, neither Seller nor Buyer shall have any liability hereunder except for those obligations which expressly survive the termination of this Agreement and Escrow Agent shall promptly return the Deposit to Buyer without further instruction from Seller. In the event Buyer delivers an Approval Notice on or before the last day second 1% of the Due Diligence Period, Buyer shall be deemed to have elected to proceed Purchase Price does not include the matters described in Section 1.3 (a) and (b) hereof for which the Seller is separately liable in accordance with the Transaction pursuant to the terms and conditions of this Agreement. Buyer and Seller each acknowledge and agree that Buyer shall have no right after the expiration of the Due Diligence Period to terminate this Agreement pursuant to this Article 4. Notwithstanding the foregoing, Buyer and Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall be permitted to continue to conduct further Due Diligence on and inspections of the Property until the Closing subject to the terms and conditions of this Agreement. Within three (3) business days following the Effective Date, Seller shall deliver to Buyer, or make available to Buyer for review at the leasing office of the Property, those items listed on Exhibit P attached hereto that are in Seller's possession or control. Such deliveries are provided without any representation or warranty by Seller, including, without limitation, any warranty as to accuracy or completeness. Buyer has informed Seller that Buyer is required by law to complete, with respect to certain matters relating to the Property, an audit commonly known as a "3-14" Audit (“Buyer's 3-14 Audit”). Seller further agrees that Seller shall make Manager available to Buyer for interviews regarding the Property; provided that Seller makes no representations or warranties with regard to such interviewsprovisions thereof.

Buyer’s Due Diligence. Subject to the terms of that certain Access and Indemnity Agreement between Buyer and SellerOn or before July 30, dated March 13, 2012, Buyer acknowledges that commencing on the execution of and delivery of the Access and Indemnity Agreement between Buyer and Seller and continuing until 5:00 p.m. Eastern Time on April 5, 2012 2015 (the “Due Diligence PeriodExpiration Date”), Buyer shall have completed its due diligence investigation of the Property and shall have approved or disapproved such matters as Buyer deems appropriate in its sole and absolute discretion with respect to the Property, including without limitation any items related to the physical condition of the Property or the Property’s suitability for Buyer's engineers’s intended purpose. Notwithstanding anything in this Agreement to the contrary, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives Buyer shall have the right to conduct examinations, inspections, testing, studies and/or investigations (herein collectively called until 6:00 p.m. Pacific Time on the “Due Diligence”) of the Property and information regarding the Property. If Buyer is satisfied with the results of its Due Diligence (including Expiration Date, to elect in its review of the Title Documents), in Buyer's sole and absolute discretion, Buyer shall deliver written notice of such satisfaction (an "Approval Notice") to Seller at any time prior to 5:00 p.m. Eastern Time on the last day of the Due Diligence Period. In the event Buyer fails to timely deliver an Approval Notice or in the event Buyer delivers by giving written notice to Seller and Escrow Holder, (A) to terminate this Agreement, or (B) to confirm its satisfaction with the Property and intent to close the transaction pursuant to the terms of its this Agreement (the “Approval Notice”). Buyer’s failure to give the Approval Notice shall be deemed an election to terminate this Agreement. Upon Buyer’s election, or deemed election, to terminate this Agreement on or prior to the expiration of the Due Diligence Periodunder this Section 3(b), this Agreement shall terminatebe deemed cancelled, andthe Deposit shall be released by Escrow Holder to Buyer immediately upon written demand by Buyer, in the event of such termination, after which neither Seller nor Buyer party shall have any liability hereunder further obligations to the other under this Agreement, except for those obligations which expressly that are specifically stated to survive the termination of this Agreement and Escrow Agent Agreement. Concurrently with delivering the Approval Notice, if at all, Buyer shall promptly return notify Seller in writing whether Buyer desires to assume any of the Deposit to Buyer without further instruction from SellerBank Debt or pay off any of the Agency Debt. In the event If Buyer delivers an the Approval Notice on or before the last day but does not notify Seller in writing whether Buyer desires to assume any of the Due Diligence PeriodBank Debt or pay off any of the Agency Debt, then Buyer shall be deemed to have elected to proceed with the Transaction pursuant to the terms and conditions of this Agreement. Buyer and Seller each acknowledge and agree that Buyer shall have no right after the expiration pay off all of the Due Diligence Period to terminate this Agreement pursuant to this Article 4. Notwithstanding Bank Debt and the foregoing, Buyer and Buyer's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall be permitted to continue to conduct further Due Diligence on and inspections of the Property until the Closing subject to the terms and conditions of this Agreement. Within three (3) business days following the Effective Date, Seller shall deliver to Buyer, or make available to Buyer for review at the leasing office of the Property, those items listed on Exhibit P attached hereto that are in Seller's possession or control. Such deliveries are provided without any representation or warranty by Seller, including, without limitation, any warranty as to accuracy or completeness. Buyer has informed Seller that Buyer is required by law to complete, with respect to certain matters relating to the Property, an audit commonly known as a "3-14" Audit (“Buyer's 3-14 Audit”). Seller further agrees that Seller shall make Manager available to Buyer for interviews regarding the Property; provided that Seller makes no representations or warranties with regard to such interviewsAgency Debt.