Diligence Investigations. As used in this Agreement, the term “Due Diligence Period” shall mean the period from the date of this Agreement until 5:00 p.m. (Pacific time) on June 17, 2010. If the results of any of Purchaser’s diligence or inspections conducted during the Due Diligence Period pursuant to Section 4.1 or any other disclosures to the Purchaser indicate an adverse condition or other adverse matter (an “Adverse Discovery”), then the Purchaser shall promptly give written notice to the Sellers of such Adverse Discovery with reasonable specificity and including in such notice its opinion as to the adverse impact on the value of the applicable Property as a result thereof, but in no event later than the expiration of the Due Diligence Period; provided, however, that in no event shall an Adverse Discovery include (i) any condition or matter that is fully and accurately disclosed in (A) any exhibit or schedule to this Agreement (except that Exhibit 1(f) (Schedule of Property Contracts) and Exhibit 6.1(i) (Schedule of Leases) shall not be deemed to disclose the substance of the Property Contracts or the Leases, which the Sellers acknowledge the Purchaser is reviewing during the Due Diligence Period), or (B) in any of the documents or other items listed in Exhibit 4.3A to this Agreement (items (A) and (B) are the “Baseline Disclosure Documents”); provided, however, that a condition or matter shall be not be considered to have been fully and accurately disclosed if Purchaser becomes aware of additional or different adverse facts or information related to such condition or matter and/or the likelihood of additional expenses in connection therewith including, without limitation, if a condition or other matter disclosed in a Baseline Disclosure Document is more adverse than specifically disclosed in such Baseline Disclosure Document or if the estimated cost of remedying a condition or matter is greater than the estimate or projection therefor set forth in a Baseline Disclosure Document (and if a Baseline Disclosure Document does not include an estimate or projection of cost, such estimate or projection shall be deemed to be zero), (ii) any finding, conclusion or opinion of the Purchaser with respect to the matters listed in Exhibit 4.3B, (iii) an Outage Event or a Future Outage, which are governed by the provisions of Sections 7.4(c)(xi) and 7.4(c)(xii). The Sellers acknowledge that one aspect of the Purchaser’s diligence investigations will be the review of the existing so-called “C...
Diligence Investigations. During the Inspection Period, Purchasers, at its own cost and expense, shall have the right to obtain new or updated Phase 1 investigations or zoning reports for the Real Property, and Purchasers shall provide copies of any such updates to Sellers within two (2) Business Days after its receipt thereof. At least five (5) calendar days prior to the end of the Inspection Period, Purchasers shall give Sellers notice of any matters set forth in any such updates which are not identified in the Sellers’ Diligence Materials and as to which Purchasers object. Sellers shall have the right, but not the obligation, to remove, satisfy or otherwise cure any such matter as to which Purchasers so object. If Sellers are unable or unwilling to take such actions as may be required to cure such objections, Sellers shall give Purchasers notice thereof; it being understood and agreed that the failure of Sellers to give such notice within five (5) Days after its receipt of Purchasers’ notice of objection shall be deemed an election by Sellers not to remedy such matters. If Sellers shall be unable or unwilling to remove or address any xxxxxx to which Purchasers have so objected, Purchasers shall elect either (a) to terminate this Agreement and receive a refund of the Deposit as provided in Section 2.8 above or (b) to proceed to Closing notwithstanding such matter without any abatement or reduction in the Purchase Price on account thereof. Purchasers shall make any such election by written notice to Sellers given on or prior to the expiration of the Inspection Period. The failure of Purchasers to give such notice shall be deemed an election by Purchasers to proceed to Closing in accordance with clause (b) above.
