Common use of Buyer’s Due Diligence Clause in Contracts

Buyer’s Due Diligence. If not already commenced as of the date hereof, Buyer shall promptly following the execution of this Agreement, and subject to Section 5.1 hereof, commence and thereafter diligently pursue to completion its (i) on-site due diligence visits of the properties, (ii) investigation of the condition of the Business and the Assets, including but not limited to the Inspection Reports, and (iii) evaluation of the books and records of the Business (collectively, the “Buyer’s Due Diligence Investigation”). Buyer agrees to provide the Seller with a complete and correct copy of all Inspection Reports received by Buyer in connection with Buyer’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 (30) days after Buyer’s receipt of such Inspection Report shall be deemed accepted 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 Seller 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, then, in either case, Buyer may elect, by written notice delivered to the Seller, either 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, or (b) continue to Closing and negotiate in good faith with the Seller to reach a resolution to Buyer’s and Seller’s reasonable satisfaction (except that such resolution shall not include a reduction in the Purchase Price).

Buyer’s Due Diligence. The “Due Diligence Period” shall be defined as the period continuing until the earlier of: (a) 5:00 p.m. Eastern Time on June 21, 2019, or (b) the date on which this Agreement is terminated by Buyer pursuant to this Section 4.1. Buyer shall have the right to 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 each Seller’s Individual Property and information regarding each Seller’s Individual Property until the date this Agreement is terminated or Closing occurs. If Buyer is not already commenced as satisfied with the results of its Due Diligence (including its review of the date Title Documents) for all of the Property, or if Buyer elects otherwise not to proceed with the Transactions in Buyer’s sole and absolute discretion, for no reason or any reason, Buyer may elect at any time prior to 5:00 p.m. Eastern Time on the last day of the Due Diligence Period to (i) terminate this Agreement with respect to all of the Property and all Sellers by written notice thereof to Sellers given in accordance with the provisions of Section 13.9 hereof, and, if there is such a termination, neither Sellers nor Buyer shall promptly following have any liability hereunder except for those obligations that expressly survive the execution termination of this Agreement, and subject Buyer shall be entitled to Section 5.1 hereof, commence and thereafter diligently pursue to completion its (i) on-site due diligence visits the prompt return of the properties, (ii) investigation of the condition of the Business and the Assets, including but not limited to the Inspection Reports, and (iii) evaluation of the books and records of the Business (collectively, the “Buyer’s Due Diligence Investigation”). Buyer agrees to provide the Seller with a complete and correct copy of all Inspection Reports received by Buyer in connection with Buyer’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 (30) days after Buyer’s receipt of such Inspection Report shall be deemed accepted 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 herebyDeposit, or (ii) Buyer and Seller are not able to reach an agreement as proceed with the - -6 - Transactions pursuant to the content 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 Schedule as right to which terminate this Agreement under this Section 4.1; (B) Buyer has raised a timely objection 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 3.19 within 2.1 hereof, and (C) except as otherwise expressly provided in this Agreement, the applicable thirty (30) day time period, then, in either case, Deposit shall be non-refundable. Buyer may elect, by written notice delivered acknowledges and agrees that Buyer shall have no right after the expiration of the Due Diligence Period to the Seller, either to (a) terminate this Agreement pursuant to this Section 4.1. Buyer acknowledges that, as set forth herein and neither party shall have any further obligation of the Effective Date, Buyer has no other right pursuant to this Section 4.1 to terminate the other except as may be expressly provided herein, or (b) continue to Closing and negotiate in good faith with the Seller to reach a resolution to Buyer’s and Seller’s reasonable satisfaction (except that such resolution shall not include a reduction in the Purchase Price)Agreement.

Buyer’s Due Diligence. If not already commenced as of On or before July 30, 2015 (the date hereof“Due Diligence Expiration Date”), Buyer shall promptly following have completed its due diligence investigation of the execution 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 intended purpose. Notwithstanding anything in this Agreement to the contrary, Buyer shall have the right until 6:00 p.m. Pacific Time on the Due Diligence Expiration Date, to elect in its sole and absolute discretion, by giving written notice to Seller and Escrow Holder, (A) to terminate this Agreement, or (B) to confirm its satisfaction with the Property and subject intent to Section 5.1 hereof, commence and thereafter diligently pursue to completion its (i) on-site due diligence visits of close the properties, (ii) investigation of the condition of the Business and the Assets, including but not limited transaction pursuant to the Inspection Reports, and terms of this Agreement (iii) evaluation of the books and records of the Business (collectively, the “Buyer’s Due Diligence InvestigationApproval Notice”). Buyer agrees to provide the Seller with a complete and correct copy of all Inspection Reports received by Buyer in connection with Buyer’s Due Diligence Investigation. Any fact, matter, condition, deficiency, encumbrance, or encroachment reflected or referenced in any Inspection Report which is not objected failure to in writing by Buyer within thirty (30) days after Buyer’s receipt of such Inspection Report give the Approval Notice shall be deemed accepted by Buyeran election to terminate this Agreement. Notwithstanding the foregoing, if (i) the information found during the Upon Buyer’s Due Diligence Investigationelection, or through its review and evaluation of the Schedulesdeemed election, would be reasonably deemed to have a Material Adverse Effect on the overall transaction contemplated hereby, or (ii) Buyer and Seller 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, then, in either case, Buyer may elect, by written notice delivered to the Seller, either to (a) terminate this Agreement as set forth herein and under this Section 3(b), this Agreement shall be deemed cancelled, the Deposit shall be released by Escrow Holder to Buyer immediately upon written demand by Buyer, after which neither party shall have any further obligation obligations to the other under this Agreement, except as may those that are specifically stated to survive the termination of this Agreement. Concurrently with delivering the Approval Notice, if at all, Buyer shall notify Seller in writing whether Buyer desires to assume any of the Bank Debt or pay off any of the Agency Debt. If Buyer delivers the Approval Notice but does not notify Seller in writing whether Buyer desires to assume any of the Bank Debt or pay off any of the Agency Debt, then Buyer shall be expressly provided herein, or (b) continue deemed to Closing have elected to pay off all of the Bank Debt and negotiate in good faith with the Seller to reach a resolution to Buyer’s and Seller’s reasonable satisfaction (except that such resolution shall not include a reduction in the Purchase Price)Agency Debt.

Buyer’s Due Diligence. If not already commenced as 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 date hereofAccess 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 following return the execution 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 subject to Section 5.1 hereof, commence Seller each acknowledge and thereafter diligently pursue to completion its (i) on-site due diligence visits agree that Buyer shall have no right after the expiration of the properties, (ii) investigation of the condition of the Business and the Assets, including but not limited to the Inspection Reports, and (iii) evaluation of the books and records of the Business (collectively, the “Buyer’s Due Diligence Investigation”). Buyer agrees Period to provide the Seller with a complete and correct copy of all Inspection Reports received by Buyer in connection with Buyer’s Due Diligence Investigation. Any fact, matter, condition, deficiency, encumbrance, or encroachment reflected or referenced in any Inspection Report which is not objected terminate this Agreement pursuant to in writing by Buyer within thirty (30) days after Buyer’s receipt of such Inspection Report shall be deemed accepted by Buyerthis Article 4. Notwithstanding the foregoing, if (i) the information found during the Buyer and Buyer’s 's engineers, architects, employees, agents, lenders, consultants, contractors, attorneys and representatives shall be permitted to continue to conduct further Due Diligence Investigationon 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 through its make available to Buyer for review and evaluation at the leasing office of the SchedulesProperty, would be reasonably deemed to have a Material Adverse Effect those items listed on the overall transaction contemplated herebyExhibit P attached hereto that are in Seller's possession or control. Such deliveries are provided without any representation or warranty by Seller, or (ii) Buyer and Seller are not able to reach an agreement including, without limitation, any warranty as to the content of any Schedule as to which accuracy or completeness. Buyer has raised a timely objection pursuant informed Seller that Buyer is required by law to Section 3.19 within the applicable thirty (30) day time periodcomplete, then, in either case, Buyer may elect, by written notice delivered with respect to certain matters relating to the SellerProperty, either an audit commonly known as a "3-14" Audit (“Buyer's 3-14 Audit”). Seller further agrees that Seller shall make Manager available to (a) terminate this Agreement as set forth herein and neither party shall have any further obligation Buyer for interviews regarding the Property; provided that Seller makes no representations or warranties with regard to the other except as may be expressly provided herein, or (b) continue to Closing and negotiate in good faith with the Seller to reach a resolution to Buyer’s and Seller’s reasonable satisfaction (except that such resolution shall not include a reduction in the Purchase Price)interviews.

Buyer’s Due Diligence. If not already commenced as of the date hereof, CONDITION OF THE PROPERTY Buyer shall promptly following acknowledges that commencing prior to the execution of this AgreementAgreement and continuing for a period which will expire on September 30, 1996 (the "Due Diligence Period"), Buyer has conducted, and subject shall continue to Section 5.1 hereofconduct, commence and thereafter diligently pursue to completion its examinations, inspections, testing, studies and/or investigations (iherein collectively called the "Due Diligence") on-site due diligence visits of the properties, (ii) investigation of Property and information regarding the condition of the Business and the Assets, including but not limited to the Inspection Reports, and (iii) evaluation of the books and records of the Business (collectively, the “Buyer’s Due Diligence Investigation”)Property. Buyer agrees to provide the Seller with a complete and correct copy of all Inspection Reports received by Buyer in In connection with Buyer’s 's Due Diligence, Seller shall deliver to Buyer on or before September 23, 1996, copies of the executed 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 remedy shall be an extension of the end of the Due Diligence Investigation. Any factPeriod, matter, condition, deficiency, encumbrance, or encroachment reflected or referenced in any Inspection Report which is not objected with respect only to in writing by Buyer within thirty (30) days after Buyer’s receipt 's review of such Inspection Report 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 parties and Seller and Buyer shall be deemed accepted relieved of all of their obligations hereunder, except for those provisions that by Buyertheir terms survive the termination of this Agreement unless, prior to the expiration of said date, Buyer delivers to Seller written notice of its election to have this Agreement remain in effect. Notwithstanding the foregoing, if (i) the information found during the Buyer’s Due Diligence InvestigationPeriod, or through its with respect to all matters other than Buyer's review and evaluation of such outstanding estoppel certificates, shall expire on 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 Schedules, would be reasonably deemed parties upon the expiration of the Due Diligence Period unless prior thereto Buyer delivers to Seller written notice of its election to have this Agreement remain in effect. If this Agreement remains in effect following the expiration of the Due Diligence Period as a Material Adverse Effect on the overall transaction contemplated herebyresult of Buyer's election, or (ii) then Buyer and Seller are not able each acknowledge and agree that Buyer shall have no additional period after the expiration of the Due Diligence Period to reach an agreement conduct further physical Due Diligence or regarding the Property. At Closing and as a material inducement for Seller to consummate 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, then, in either caseTransaction, Buyer may elect, by written notice delivered to the Seller, either 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, or (b) continue to Closing and negotiate in good faith with the Seller to reach will deliver a resolution to Buyer’s and Seller’s reasonable satisfaction (except that such resolution shall not include a reduction certification in the Purchase Price)form of Exhibit E attached hereto and incorporated herein by this reference.

Buyer’s Due Diligence. If not already commenced as of On or before April 25, 2011 (the date hereof“Due Diligence Expiration Date”), Buyer shall promptly following 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 intended purpose and any other Property Conditions (as defined in Section 11 below). During the Due Diligence Period, Buyer may approve or disapprove any or all matters related to the Property in its sole and absolute discretion. In consideration for Seller granting to Buyer the right to inspect the Property and allowing Buyer access to the Property for purposes of its due diligence, Buyer has paid to Seller concurrently with the execution of this AgreementAgreement the sum of One Hundred Dollars ($100), cash-in-hand, which amount constitutes independent consideration, separate and subject apart from the Purchase Price. 3.2.1 Buyer shall have the right to Section 5.1 hereof, commence and thereafter diligently pursue elect to completion its either (i) on-site due diligence visits of the properties, (ii) investigation of the condition of the Business and the Assets, including but not limited to the Inspection Reports, and (iii) evaluation of the books and records of the Business (collectively, the “Buyer’s Due Diligence Investigation”). Buyer agrees to provide the Seller with a complete and correct copy of all Inspection Reports received by Buyer in connection with Buyer’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 (30) days after Buyer’s receipt of such Inspection Report shall be deemed accepted 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 herebyterminate this Agreement, or (ii) Buyer and Seller are not able to reach an agreement as proceed to the content Close of Escrow (subject to the other terms and conditions herein which are to be performed or satisfied after the Due Diligence Expiration Date), with such election to be made by delivering written notice to Seller, not later than 5:00 p.m. Texas time on the date which is one (1) business day following the Due Diligence Expiration Date; provided, however, that Buyer’s failure to delivery written notice of Buyer’s election to proceed pursuant to the preceding item (ii) shall be irrevocably deemed to be Buyer’s election to terminate this Agreement. Buyer may elect to terminate this Agreement pursuant to this Section 3.2.1 for any Schedule as to which reason based on Buyer’s sole discretion, or for no reason at all. 3.2.2 In the event Buyer has raised a timely objection terminates this Agreement pursuant to Section 3.19 within 3.2.1, the applicable thirty (30) day time periodDeposit shall be returned promptly to Buyer and, then, in either case, Buyer may elect, by written notice delivered to the Seller, either to (a) terminate except for any provisions of this Agreement as set forth herein which expressly state that they shall survive the termination of this Agreement, this Agreement shall be terminated and canceled in all respects and neither party shall Buyer nor Seller will have any further obligation to the other except as may be expressly provided herein, rights or (b) continue to Closing and negotiate in good faith with the Seller to reach a resolution to Buyer’s and Seller’s reasonable satisfaction (except that such resolution shall not include a reduction in the Purchase Price)obligations hereunder.