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. (b) Parent acknowledges that prior to the date of this Agreement, the Company Parties have delivered to Parent, or the Company Parties have provided Parent with access to, the information, documents, agreements and reports relating to the Property, as identified on Exhibit D attached hereto (collectively, the “Due Diligence Materials”). Parent shall have until the expiration of the Due Diligence Period to review and approve the Due Diligence Materials. (c) Prior to any entry by Parent or any of Parent’s Representatives onto any Property, Parent shall: (i) if Parent does not then have such a policy in force, procure a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to the Company Parties covering all of Parent’s activities, with a single limit of liability (per occurrence and aggregate) of not less than $2,000,000.00; and (ii) deliver to the Company Parties a Certificate of Insurance, evidencing that such insurance is in force and effect, and evidencing that the Company Parties have been named as an additional insured thereunder with respect to any Parent’s activities (such Certificate of Insurance shall be delivered to the Company Parties). Such insurance shall be written on an “occurrence” basis, and shall be maintained in force until the earlier of (x) the termination of this Agreement and the conclusion of all Parent’s activities, or (y) Closing. (d) During the Due Diligence Period, Parent also shall have the opportunity to conduct a Phase I environmental audit/study of all Property, provided such Phase I environmental audit/study is not invasive or intrusive. Any environmental audit/study proposed to be undertaken by Parent shall be subject to the Company’s written approval, which shall not be unreasonably withheld, prior to the commencement thereof. (e) Parent, 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 the Company Parties, any Property or the tenants or guests of any Property, and without unreasonably interfering with or disturbing any employee, tenant or guest at the Hotels. Other than required by applicable law, subpoena or other court order, Parent shall not reveal to any governmental agency or any other third party (other than Parent’s employees, agents, attorneys, lenders and advisors) not approved by the Company the results of or any other information acquired pursuant to its inspections. Parent will promptly restore any damage to the Property caused by Parent’s inspection to its condition immediately preceding such inspections and examinations and will keep the Property free and clear of any mechanic’s liens or materialmen’s liens in connection with such inspections and examinations. (f) The cost of the inspections and tests undertaken pursuant to this Section 12.2 shall be borne solely by Parent. Parent shall indemnify, protect, defend, and hold the Company Parties, their lenders, 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 Parent or its agents, employees or contractors occurring in connection with, or as a result of, such inspections, tests or examinations of any Property. (g) Parent covenants and agrees that, until the Closing Date, all such information and materials disclosed or delivered to it by the Company Parties, or their agents, employees and representatives, are confidential and proprietary information, and that Parent shall hold the same in strict confidence, and shall not disclose the same to anyone other than its employees, affiliates, financial partners, potential lenders, and advisors on a “need-to-know” basis subject to the confidentiality restrictions set forth herein. Parent also agrees that, in the event the transactions contemplated in this Agreement are not consummated as provided herein, Parent shall return all such information and documentation, and all copies thereof, to the Company promptly upon its written request, together with copies of all third-party reports and studies obtained by Parent with respect to any of the Properties. (h) Except as expressly provided in this Agreement, the Company Parties make no representations or warranties as to the truth, accuracy or completeness of any materials, data or other information, if any, supplied to Parent in connection with Parent’s inspection of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in the Company Parties’ possession). It is the parties’ express understanding and agreement that any such materials are to be provided only for Parent’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 Properties, and, in doing so, Parent shall rely exclusively on its own independent investigation and evaluation of every aspect of each Property and not on any materials supplied by the Company Parties. Parent expressly disclaims any intent to rely on any such materials provided to it by the Company Parties in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information. (i) The obligations of Parent under this Section 12.2 (including its indemnification obligations) shall survive Closing or the termination of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Inland American Real Estate Trust, Inc.)
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.
(b) Parent acknowledges that prior to the date of this Agreement, the Company Parties have delivered to Parent, or the Company Parties have provided Parent with access to, the information, documents, agreements and reports relating to the Property, as identified on Exhibit D attached hereto (collectively, the “Due Diligence Materials”). Parent shall have until the expiration of the Due Diligence Period to review and approve the Due Diligence Materials.
(c) Prior to any entry by Parent or any of Parent’s Representatives onto any Property, Parent shall: (i) if Parent does not then have such a policy in force, procure a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to the Company Parties covering all of Parent’s activities, with a single limit of liability (per occurrence and aggregate) of not less than $2,000,000.00; and (ii) deliver to the Company Parties a Certificate of Insurance, evidencing that such insurance is in force and effect, and evidencing that the Company Parties have been named as an additional insured thereunder with respect to any Parent’s activities (such Certificate of Insurance shall be delivered to the Company Parties). Such insurance shall be written on an “occurrence” basis, and shall be maintained in force until the earlier of (x) the termination of this Agreement and the conclusion of all Parent’s activities, or (y) Closing.
(d) During the Due Diligence Period, Parent also shall have the opportunity to conduct a Phase I environmental audit/study of all Property, provided such Phase I environmental audit/study is not invasive or intrusive. Any environmental audit/study proposed to be undertaken by Parent shall be subject to the Company’s written approval, which shall not be unreasonably withheld, prior to the commencement thereof.
(e) Parent, 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 the Company Parties, any Property or the tenants or guests of any Property, and without unreasonably interfering with or disturbing any employee, tenant or guest at the Hotels. Other than required by applicable law, subpoena or other court order, Parent shall not reveal to any governmental agency or any other third party (other than Parent’s employees, agents, attorneys, lenders and advisors) not approved by the Company the results of or any other information acquired pursuant to its inspections. Parent will promptly restore any damage to the Property caused by Parent’s inspection to its condition immediately preceding such inspections and examinations and will keep the Property free and clear of any mechanic’s liens or materialmen’s liens in connection with such inspections and examinations.
(f) The cost of the inspections and tests undertaken pursuant to this Section 12.2 shall be borne solely by Parent. Parent shall indemnify, protect, defend, and hold the Company Parties, their lenders, 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 Parent or its agents, employees or contractors occurring in connection with, or as a result of, such inspections, tests or examinations of any Property.
(g) Parent covenants and agrees that, until the Closing Date, all such information and materials disclosed or delivered to it by the Company Parties, or their agents, employees and representatives, are confidential and proprietary information, and that Parent shall hold the same in strict confidence, and shall not disclose the same to anyone other than its employees, affiliates, financial partners, potential lenders, and advisors on a “need-to-know” basis subject to the confidentiality restrictions set forth herein. Parent also agrees that, in the event the transactions contemplated in this Agreement are not consummated as provided herein, Parent shall return all such information and documentation, and all copies thereof, to the Company promptly upon its written request, together with copies of all third-party reports and studies obtained by Parent with respect to any of the Properties.
(h) Except as expressly provided in this Agreement, the Company Parties make no representations or warranties as to the truth, accuracy or completeness of any materials, data or other information, if any, supplied to Parent in connection with Parent’s inspection of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in the Company Parties’ possession). It is the parties’ express understanding and agreement that any such materials are to be provided only for Parent’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 Properties, and, in doing so, Parent shall rely exclusively on its own independent investigation and evaluation of every aspect of each Property and not on any materials supplied by the Company Parties. Parent expressly disclaims any intent to rely on any such materials provided to it by the Company Parties in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information.
(i) The obligations of Parent under this Section 12.2 (including its indemnification obligations) shall survive Closing or the termination of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Inland American Real Estate Trust, Inc.)
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 the Company.
(b) Parent acknowledges that prior to the date Purchaser, whereupon this Agreement shall terminate and, except for those obligations which expressly survive termination of this Agreement, the Company Parties neither party shall have delivered to Parent, or the Company Parties have provided Parent with access to, the information, documents, agreements and reports relating any further obligation to the Property, as identified on Exhibit D attached hereto (collectively, other. If Purchaser does not deliver such Notice to terminate the “Due Diligence Materials”). Parent shall have until Agreement by the expiration end of the Due Diligence Period Period, Purchaser shall be deemed to review and approve the Due Diligence Materialshave elected to proceed hereunder.
(c) 4.5.2 Prior to any entry by Parent Purchaser or any of ParentPurchaser’s Representatives Representative onto any the Property, Parent Purchaser shall: (i) if Parent does not then have such a policy in force, procure ensure that Purchaser and each Purchaser’s Representative entering the Property is covered by a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to the Company Parties Seller, covering all activities of ParentPurchaser or such Purchaser’s activitiesRepresentative, with a single limit of liability (per occurrence and aggregate) of not less than $2,000,000.001,000,000.00; and (ii) deliver to the Company Parties Seller a Certificate of Insurance, evidencing that such insurance is in force and effect, and evidencing that the Company Parties Seller and Tenant have been named as an additional insured thereunder with respect to any Parent’s activities (such Certificate of Insurance shall be delivered to the Company Parties)insureds thereunder. Such insurance shall be written on an “occurrence” basis, basis and shall be maintained in force until the earlier of (xa) the termination of this Agreement and the conclusion of all Parent’s activitiesthe activities of Purchaser and its contractors and agents in or about the Property, or (yb) Closingthe Closing Date.
(d) During 4.5.3 Prior to the Due Diligence Periodexecution hereof, Parent Purchaser has also shall have had the opportunity to conduct a Phase I environmental audit/study of all the Real Property, provided such and if recommended by Purchaser’s environmental consultant, a Phase I II environmental audit/study is not invasive or intrusive. Any environmental audit/study proposed to be undertaken by Parent shall be subject to the Company’s written approval, which shall not be unreasonably withheld, prior to the commencement thereofstudy.
(e) Parent, 4.5.4 Purchaser shall at all times, will times conduct such due diligence in compliance with all applicable laws, Laws and in a manner so as to not cause damage, loss, cost or expense to Seller, the Company PartiesProperty, any Property or the tenants or guests of any Propertythe Hotel, and without unreasonably interfering with or disturbing (i) any employee, tenant or guest at the HotelsHotel or (ii) the operations of the Hotel. Other than as required by applicable lawLaw, subpoena or other court order, Parent or in furtherance of the assignment of any License or the Submerged Land Lease, Purchaser shall not reveal to any governmental agency entity or any other third party (other than ParentPurchaser’s employees, agents, attorneys, lenders and advisorsRepresentatives on a need-to-know basis) not approved by the Company Seller the results of or any other information acquired pursuant to its inspectionsinspections which is not already public information. Parent Purchaser will promptly restore any damage to the Hotel or the Property caused by ParentPurchaser’s inspection inspections to its their condition immediately preceding such inspections and examinations and will keep the Property free and clear of any mechanic’s liens or materialmen’s liens in connection with such inspections and examinations.
(f) 4.5.5 The cost of the inspections and tests undertaken pursuant to this Section 12.2 4.5 shall be borne solely by ParentPurchaser. Parent Purchaser shall indemnify, protect, defend, and hold the Company PartiesSeller and all Seller’s Representatives harmless for, their lenders, and their affiliates, owners, agents and employees harmless from and against any obligationClaim, liability, claim Lien or Encumbrance (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’ feesfees and expenses, whether or not legal proceedings are instituted, ) arising from or related to the acts or omissions of Parent Purchaser or its agents, employees or contractors Purchaser’s Representatives occurring in connection with, or as a result of, such inspections, tests or examinations of the Property. If Purchaser elects to terminate this Agreement prior to the end of the Due Diligence Period, or upon any other termination of this Agreement except by reason of Seller’s default hereunder, Purchaser shall at Seller’s request deliver to Seller copies of all non-proprietary and non-confidential third-party reports received by Purchaser with respect to the Property; any such delivery being without representation or warranty by Purchaser whatsoever and at no cost to Seller.
(g) Parent 4.5.6 Purchaser covenants and agrees that, until the Closing Date, subject to the terms of Section 4.5.4 and Section 12.14, all such non-public information and materials disclosed or and/or delivered to it by the Company Parties, or their agents, employees and representatives, on behalf of Seller or Seller’s Representatives are confidential and proprietary information, and that Parent Purchaser shall (and shall cause Purchaser’s Representatives to) hold the same in strict confidence, and shall not disclose the same to anyone other than its employees, affiliates, financial partners, potential lenders, and advisors Purchaser’s Representatives assisting in the evaluation of the Property on a “need-to-know” basis subject to the confidentiality restrictions set forth herein, except that Purchaser may make such disclosures as required by law or in connection with Purchaser’s registration of securities with a securities exchange. Parent Purchaser also agrees that, in the event if the transactions contemplated in this Agreement are not consummated as provided herein, Parent Purchaser shall return to Seller or destroy all such information and documentation, and all copies thereof, to the Company promptly upon its written request, together with copies of including all third-party reports and studies obtained by Parent Purchaser with respect to the Property, together with all copies thereof (except as may otherwise be required to be retained by Purchaser by Law and copies that are stored electronically in conjunction with the written records retention policy of Purchaser or its Affiliates and that are only accessible to document management personnel, provided that any such retained information shall in all events remain subject to the confidentiality provisions of the Propertiesthis subsection), but shall deliver to Seller copies of all such non-proprietary third-party reports and studies if requested by Seller.
(h) 4.5.7 Except as expressly provided in this Agreement, the Company Parties make Seller makes no representations or warranties as to the truth, accuracy or completeness of any materials, data or other information, if any, supplied to Parent Purchaser or any Purchaser’s Representative in connection with ParentPurchaser’s inspection or evaluation of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in Seller’s possession or that such materials contain all relevant facts or do not omit facts or information that may be of interest to Purchaser), except that Seller represents and warrants to Purchaser that the Company Parties’ possession)documents and other materials that Seller has or shall provide to Purchaser under this Agreement are the complete and accurate copies of such documents and other materials in Seller’s possession or control. It is the parties’ express understanding and agreement that any such materials are to be provided only for ParentPurchaser’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 PropertiesProperty, and, in doing so, Parent Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of each the Property and not on any materials supplied by the Company PartiesSeller. Parent Purchaser expressly disclaims any intent to rely on any such materials provided to it by the Company Parties Seller or Seller’s Representatives in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information.
4.5.8 During the Due Diligence Period, Purchaser and Seller shall each work in good faith to negotiate the terms of a lease for the Property (ithe “Lease”) which shall contain the terms set forth on Exhibit F attached hereto. Seller shall deliver a draft of the Lease to Purchaser within fifteen (15) days of the Effective Date. In the event Purchaser and Seller do not agree on the form of Lease prior to the end of the Due Diligence Period, after reasonable, good faith and appropriate discussions, Purchaser or Seller shall each have the right, in their sole direction, by providing Notice to the other party and Escrow Agent, to terminate this Agreement on any date prior to the end of the Due Diligence Period, 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 other.
4.5.9 The obligations of Parent Purchaser under this Section 12.2 4.5 (including its indemnification obligations) shall survive Closing or the termination of this AgreementAgreement indefinitely.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Altitude International Holdings, Inc.)
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 any time during the Due Diligence PeriodPurchaser may, Parent shall have the right, in at its sole cost and absolute discretionexpense, engage a third-party Certified Public Accountant to terminate this Agreement 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 written notice 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 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 Company.
(b) Parent acknowledges that prior accountants performing the audits a representation letter acceptable to the date Seller in accordance with American Institute of this Agreement, the Company Parties have delivered to Parent, or the Company Parties have provided Parent with access to, the information, documents, agreements and reports relating to the Property, as identified on Exhibit D attached hereto (collectively, the “Due Diligence Materials”)Public Accountants professional standards. Parent shall have until the expiration of the Due Diligence Period to review and approve the Due Diligence Materials.
(c) Prior to any entry by Parent or any of Parent’s Representatives onto any Property, Parent shall: (i) if Parent does not then have such a policy in force, procure a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to the Company Parties covering all of Parent’s activities, with a single limit of liability (per occurrence and aggregate) of not less than $2,000,000.00; and (ii) deliver to the Company Parties a Certificate of Insurance, evidencing that such insurance is in force and effect, and evidencing that the Company Parties have been named as an additional insured thereunder with respect to any Parent’s activities (such Certificate of Insurance shall be delivered to the Company Parties). Such insurance shall be written on an “occurrence” basis, and shall be maintained in force until the earlier of (x) the termination of this Agreement and the conclusion of all Parent’s activities, or (y) Closing.
(d) During the Due Diligence Period, Parent Purchaser shall also shall have the opportunity to conduct a Phase I environmental audit/study study, a property condition report, zoning report and such other studies desired by Purchaser (subject to Seller’s consent rights set forth herein) of all Propertythe 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 Parent Purchaser shall be subject to the CompanySeller’s written approvalapproval prior to the commencement thereof, which approval shall not be unreasonably withheld. As a condition to any such consent, prior to Purchaser shall obtain and maintain such public liability insurance in an amount of Two Million Dollars ($2,000,000) affecting the commencement thereof.
(e) ParentLand 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, laws and in a manner so as to not cause damage, loss, cost or expense to Seller, the Company Parties, any Real Property or the tenants or guests of any the Real Property, and without unreasonably interfering with or disturbing any employee, tenant or guest at the HotelsReal Property. Other than required by applicable law, subpoena or other court order, Parent Purchaser shall not reveal to any governmental agency or any other third party (other than ParentPurchaser’s employees, agents, attorneys, trustees, lenders and advisors) not approved by the Company Seller the results of or any other information acquired pursuant to its inspections. Parent Purchaser will promptly restore any damage to the Real Property caused by ParentPurchaser’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.
(f) . The cost of the inspections and tests undertaken pursuant to this Section 12.2 4.3 shall be borne solely by ParentPurchaser. Parent Purchaser shall indemnify, protect, defend, and hold the Company PartiesSeller, their 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 Parent 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 Property.
(g) Parent 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, until the Closing Date, that all such information and materials disclosed or and/or delivered to it by the Company PartiesSeller, or their Seller’s agents, employees and representatives, are confidential and proprietary information, and that Parent Purchaser shall hold the same in strict confidence, and shall not disclose the same to anyone other than its employeesagents, affiliates, financial partners, potential lenders, employees and advisors on a “need-to-know” basis subject to the confidentiality restrictions set forth herein. Parent Purchaser also agrees that, in the event the transactions contemplated in this Agreement are not consummated as provided hereinherein or Purchaser terminates this Agreement prior to the expiration of the Due Diligence Period, Parent Purchaser shall return all such information and documentation, and all copies thereof, to the Company Seller promptly upon Seller’s request and certify to Seller that it has destroyed all materials prepared by or for Purchaser and/or its written request, together with copies of all third-party reports representatives utilizing any such information and studies obtained by Parent with respect to any of the Properties.
(h) documentation. Except as expressly provided in this Agreement, the Company Parties make Seller makes no representations or warranties as to the truth, accuracy or completeness of any third-party materials, data or other information, if any, supplied to Parent Purchaser in connection with ParentPurchaser’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 the Company Parties’ Seller’s possession). It is the parties’ express understanding and agreement that any such materials are to be provided only for ParentPurchaser’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 PropertiesLand and the Land Rights, and, in doing so, Parent Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of each the Real Property and not on any third-party materials supplied by the Company PartiesSeller. Parent Purchaser expressly disclaims any intent to rely on any such third-party materials provided to it by the Company Parties Seller in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information.
(i) . The obligations of Parent Purchaser under this Section 12.2 4.3 (including its indemnification obligations) shall survive Closing the Close of Escrow or the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chesapeake Lodging Trust)
Inspection and Due Diligence Review. (a) Parent 4.3.1 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) 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).
(b) Parent 4.3.2 Purchaser acknowledges that prior to the date of this Agreement, the Company Parties Sellers have delivered to ParentPurchaser, or the Company Parties Sellers have provided Parent Purchaser with access to, the information, documents, agreements and reports relating to the Property, as identified on Exhibit D attached hereto (collectively, the “certain Due Diligence Materials”). Parent Purchaser shall have until the expiration of the Due Diligence Period to review and approve the Due Diligence Materials.
(c) Prior to any entry by Parent or any of Parent’s Representatives onto any Property, Parent shall: (i) if Parent does not then have such a policy in force, procure a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to the Company Parties covering all of Parent’s activities, with a single limit of liability (per occurrence and aggregate) of not less than $2,000,000.00; and (ii) deliver to the Company Parties a Certificate of Insurance, evidencing that such insurance is in force and effect, and evidencing that the Company Parties have been named as an additional insured thereunder with respect to any Parent’s activities (such Certificate of Insurance shall be delivered to the Company Parties). Such insurance shall be written on an “occurrence” basis, and shall be maintained in force until the earlier of (x) the termination of this Agreement and the conclusion of all Parent’s activities, or (y) Closing.
(d) 4.3.3 During the Due Diligence Period, Parent Purchaser shall also shall have the opportunity to conduct a Phase I environmental audit/study of all Real Property, provided such Phase I environmental audit/study is not invasive or intrusive. Any environmental audit/study study, other than the Phase I, proposed to be undertaken by Parent Purchaser shall be subject to the Company’s Sellers’ written approval, which shall not be unreasonably withheld, prior to the commencement thereof. As a condition to any such consent, Purchaser shall, or shall cause the entity conducting the Phase I environmental audit/study to, obtain and maintain such public liability insurance in an amount of Two Million Dollars ($2,000,000) for each Property, naming as an additional insured the Seller owning such Real Property. At any time after the end of the General Review Period, but prior to 3:00 p.m. California time on the last day of the Due Diligence Period, Purchaser shall have the right in its sole discretion to terminate this Agreement only if it is not satisfied with the result of any environmental audit/study or of any structural study of any Hotel, provided that Purchaser shall provide Seller with a copy of any such audit/study and shall specify in writing the reason for its dissatisfaction.
(e) Parent4.3.4 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 the Company PartiesSellers, any Property or the tenants or guests of any Property, and without unreasonably interfering with or disturbing any employee, tenant or guest at the Hotels. Other than required by applicable law, subpoena or other court order, Parent Purchaser shall not reveal to any governmental agency or any other third party (other than ParentPurchaser’s employees, agents, attorneys, lenders and advisors) not approved by the Company Sellers the results of or any other information acquired pursuant to its inspections. Parent Purchaser will promptly restore any damage to the Property caused by ParentPurchaser’s inspection to its condition immediately preceding such inspections and examinations and will keep the Property free and clear of any mechanic’s liens or materialmen’s liens in connection with such inspections and examinations.
(f) 4.3.5 The cost of the inspections and tests undertaken pursuant to this Section 12.2 4.3 shall be borne solely by ParentPurchaser. Parent Purchaser shall indemnify, protect, defend, defend and hold the Company PartiesSellers, their Sellers’ lenders, 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 Parent Purchaser or its agents, employees or contractors occurring in connection with, or as a result of, such inspections, tests or examinations of any Property.
(g) Parent 4.3.6 Purchaser covenants and agrees that, until the Closing DateClose of Escrow, all such information and materials disclosed or and/or delivered to it by the Company PartiesSellers, or their Sellers’ agents, employees and representatives, are confidential and proprietary information, and that Parent Purchaser shall hold the same in strict confidence, and shall not disclose the same to anyone other than its employees, affiliates, financial partners, potential lenders, and advisors on a “need-to-know” basis subject to the confidentiality restrictions set forth herein. Parent Purchaser also agrees that, in the event the transactions contemplated in this Agreement are not consummated as provided herein, Parent Purchaser shall return all such information and documentation, and all copies thereof, to the Company Sellers promptly upon its written Sellers’ request, together with copies of all third-party reports and studies obtained by Parent with respect to any of the Properties.
(h) 4.3.7 Except as expressly provided in this Agreement, the Company Parties Sellers make no representations or warranties as to the truth, accuracy or completeness of any materials, data or other information, if any, supplied to Parent Purchaser in connection with ParentPurchaser’s inspection of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in the Company PartiesSellers’ possession). It is the parties’ express understanding and agreement that any such materials are to be provided only for ParentPurchaser’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 Properties, and, in doing so, Parent Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of each Property and not on any materials supplied by the Company PartiesSellers. Parent Purchaser expressly disclaims any intent to rely on any such materials provided to it by the Company Parties Sellers in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information.
(i) 4.3.8 The obligations of Parent Purchaser under this Section 12.2 4.3 (including its indemnification obligations) shall survive Closing the Close of Escrow or the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Innkeepers Usa Trust/Fl)
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 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 Real Property 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 non-proprietary financial reports, the instruments evidencing Franchise Agreement, and the Contracts pertaining to the Hotels Hotel which are in or under the CompanySeller’s control and relate to the operation of the Hotels Hotel, 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 but, if required by Property or the Company, only in the presence of the Company’s representative. At any time during the Due Diligence Period, Parent shall have the rightLand, in its sole and absolute discretion, to terminate this Agreement by each case without the written notice to the Company.
consent of Seller. Not later than ten (b10) Parent acknowledges that business days prior to the date of this Agreement, the Company Parties have delivered to Parent, or the Company Parties have provided Parent with access to, the information, documents, agreements and reports relating to the Property, as identified on Exhibit D attached hereto (collectively, the “Due Diligence Materials”). Parent shall have until the expiration of the Due Diligence Period to review and approve the Due Diligence Materials.
(c) Prior to any entry by Parent or any of Parent’s Representatives onto any PropertyPeriod, Parent shall: (i) if Parent does not then have such a policy in force, procure a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to the Company Parties covering all of Parent’s activities, with a single limit of liability (per occurrence and aggregate) of not less than $2,000,000.00; and (ii) Purchaser shall deliver to Seller a written list of all contracts and leases (but not Bookings) pertaining to or affecting the Company Parties a Certificate Property and/or the Real Property which Purchaser agrees to assume. If Purchaser fails to so provide such written list, Purchaser shall assume all such contracts and leases. Upon receipt thereof, Seller shall review such list and, not later than 5:00 p.m. California time on the date five (5) business days after the receipt thereof, deliver to Purchaser, in writing, Seller’s list of Insurance, evidencing those contracts and leases which Purchaser has not agreed to assume that such insurance is in force and effect, and evidencing that the Company Parties have been named as an additional insured thereunder with respect Seller will terminate (but Seller’s obligation to any Parent’s activities (such Certificate of Insurance terminate shall be limited to those contracts and leases that can be terminated at no cost or expense to Seller) and a list of those contracts and leases that Seller will not agree to terminate. Purchaser shall have until 5:00 p.m. California time on the date two (2) business days after the receipt of Seller’s writing to then elect, in a writing delivered to the Company Parties). Such insurance shall be written on an “occurrence” basisSeller, to assume all such contracts and shall be maintained in force until the earlier of (x) the termination of leases that Seller is not willing to terminate or to terminate this Agreement and cancel the conclusion Escrow. If Purchaser does not so elect to terminate this Agreement and cancel the Escrow, then Seller shall amend Exhibit “A” to this Agreement to so reflect the contracts and leases to be assumed by Purchaser. If Purchaser fails to elect to so terminate this Agreement and cancel the Escrow as provided herein, Purchaser shall assume all of such contracts and leases that Seller has not agreed to terminate. 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 Hotel, balance sheets as of December 31, 2009 and December 31, 2008 and the related statements of operations and cash flows for the Hotel, for the years ended December 31, 2009 and December 31, 2008, which audits shall include all Parent’s activitiesdisclosures 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 information reasonably requested by the accountants relating to such balance sheets, related statements of operations and cash flows for the Hotel. In connection with such audits, Seller shall provide or (y) Closing.
(d) 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 shall have the opportunity to conduct a Phase I environmental audit/study study, a property condition report, zoning report and such other studies desired by Purchaser (subject to Seller’s consent rights set forth heein) of all the Real Property, provided such Phase I environmental audit/study is not invasive or intrusive. Any environmental audit/study proposed to be undertaken by Parent Purchaser shall be subject to the CompanySeller’s written approvalapproval prior to the commencement thereof, which approval shall not be unreasonably withheld. As a condition to any such consent, prior to Purchaser shall obtain and maintain such public liability insurance in an amount of Two Million Dollars ($2,000,000) affecting the commencement thereof.
(e) ParentReal Property, naming Seller as an additional insured. Purchaser, at all times, will conduct such due diligence in compliance with all applicable laws, laws and in a manner so as to not cause damage, loss, cost or expense to Seller, the Company Parties, any Property or the tenants or guests of any the Property, and without unreasonably interfering with or disturbing any employee, tenant or guest at the HotelsProperty. Other than required by applicable law, subpoena or other court order, Parent Purchaser shall not reveal to any governmental agency or any other third party (other than ParentPurchaser’s employees, agents, attorneys, trustees, lenders and advisors) not approved by the Company Seller the results of or any other information acquired pursuant to its inspections. Parent Purchaser will promptly restore any damage to the Property caused by ParentPurchaser’s inspection to its condition immediately preceding such inspections and examinations and will keep the Property free and clear of any mechanic’s liens or materialmen’s liens in connection with such inspections and examinations.
(f) . The cost of the inspections and tests undertaken pursuant to this Section 12.2 4.3 shall be borne solely by ParentPurchaser. Parent Purchaser shall indemnify, protect, defend, and hold the Company PartiesSeller, their 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 Parent Purchaser or its agents, employees or contractors occurring in connection with, or as a result of, such inspections, tests or examinations of the 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 Property.
(g) Parent condition already existing on the 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, until the Closing Date, that all such information and materials disclosed or and/or delivered to it by the Company PartiesSeller, or their Seller’s agents, employees and representatives, are confidential and proprietary information, and that Parent Purchaser shall hold the same in strict confidence, and shall not disclose the same to anyone other than its employeesagents, affiliates, financial partners, potential lenders, employees and advisors on a “need-to-know” basis subject to the confidentiality restrictions set forth herein. Parent Purchaser also agrees that, in the event the transactions contemplated in this Agreement are not consummated as provided hereinherein or Purchaser terminates this Agreement prior to the expiration of the Due Diligence Period, Parent Purchaser shall return all such information and documentation, and all copies thereof, thereof to the Company Seller promptly upon Seller’s request and certify to Seller that it has destroyed all materials prepared by or for Purchaser and/or its written request, together with copies of all third-party reports representatives utilizing any such information and studies obtained by Parent with respect to any of the Properties.
(h) documentation. Except as expressly provided in this Agreement, the Company Parties make Seller makes no representations or warranties as to the truth, accuracy or completeness of any third-party materials, data or other information, if any, supplied to Parent Purchaser in connection with ParentPurchaser’s inspection of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in the Company Parties’ Seller’s possession). It is the parties’ express understanding and agreement that any such materials are to be provided only for ParentPurchaser’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 PropertiesProperty, and, in doing so, Parent Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of each the Property and not on any third-party materials supplied by the Company PartiesSeller. Parent Purchaser expressly disclaims any intent to rely on any such third-party materials provided to it by the Company Parties Seller in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information.
(i) . The obligations of Parent Purchaser under this Section 12.2 4.3 (including its indemnification obligations) shall survive Closing the Close of Escrow or the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chesapeake Lodging Trust)
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 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 Real Property 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 non-proprietary financial reports, the instruments evidencing Ground Lease, the Franchise Agreement, and the Contracts pertaining to the Hotels Hotel which are in or under the CompanySeller’s control and relate to the operation of the Hotels Hotel, 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 but, if required by Property or the Company, only in the presence of the Company’s representative. At any time during the Due Diligence Period, Parent shall have the rightLand, in its sole and absolute discretion, to terminate this Agreement by each case without the written notice to the Company.
consent of Seller. Not later than ten (b10) Parent acknowledges that business days prior to the date of this Agreement, the Company Parties have delivered to Parent, or the Company Parties have provided Parent with access to, the information, documents, agreements and reports relating to the Property, as identified on Exhibit D attached hereto (collectively, the “Due Diligence Materials”). Parent shall have until the expiration of the Due Diligence Period to review and approve the Due Diligence Materials.
(c) Prior to any entry by Parent or any of Parent’s Representatives onto any PropertyPeriod, Parent shall: (i) if Parent does not then have such a policy in force, procure a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to the Company Parties covering all of Parent’s activities, with a single limit of liability (per occurrence and aggregate) of not less than $2,000,000.00; and (ii) Purchaser shall deliver to Seller a written list of all contracts and leases (but not Bookings) pertaining to or affecting the Company Parties a Certificate Property and/or the Real Property which Purchaser agrees to assume. If Purchaser fails to so provide such written list, Purchaser shall assume all such contracts and leases. Upon receipt thereof, Seller shall review such list and, not later than 5:00 p.m. California time on the date five (5) business days after the receipt thereof, deliver to Purchaser, in writing, Seller’s list of Insurance, evidencing those contracts and leases which Purchaser has not agreed to assume that such insurance is in force and effect, and evidencing that the Company Parties have been named as an additional insured thereunder with respect Seller will terminate (but Seller’s obligation to any Parent’s activities (such Certificate of Insurance terminate shall be limited to those contracts and leases that can be terminated at no cost or expense to Seller) and a list of those contracts and leases that Seller will not agree to terminate. Purchaser shall have until 5:00 p.m. California time on the date two (2) business days after the receipt of Seller’s writing to then elect, in a writing delivered to the Company Parties). Such insurance shall be written on an “occurrence” basisSeller, to assume all such contracts and shall be maintained in force until the earlier of (x) the termination of leases that Seller is not willing to terminate or to terminate this Agreement and cancel the conclusion Escrow. If Purchaser does not so elect to terminate this Agreement and cancel the Escrow, then Seller shall amend Exhibit “A” to this Agreement to so reflect the contracts and leases to be assumed by Purchaser. If Purchaser fails to elect to so terminate this Agreement and cancel the Escrow as provided herein, Purchaser shall assume all of such contracts and leases that Seller has not agreed to terminate. 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 Hotel, balance sheets as of December 31, 2009 and December 31, 2008 and the related statements of operations and cash flows for the Hotel, for the years ended December 31, 2009 and December 31, 2008, which audits shall include all Parent’s activitiesdisclosures 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 information reasonably requested by the accountants relating to such balance sheets, related statements of operations and cash flows for the Hotel. In connection with such audits, Seller shall provide or (y) Closing.
(d) 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 shall have the opportunity to conduct a Phase I environmental audit/study study, a property condition report, zoning report and such other studies desired by Purchaser (subject to Seller’s consent rights set forth heein) of all the Real Property, provided such Phase I environmental audit/study is not invasive or intrusive. Any environmental audit/study proposed to be undertaken by Parent Purchaser shall be subject to the CompanySeller’s written approvalapproval prior to the commencement thereof, which approval shall not be unreasonably withheld. As a condition to any such consent, prior to Purchaser shall obtain and maintain such public liability insurance in an amount of Two Million Dollars ($2,000,000) affecting the commencement thereof.
(e) ParentReal Property, naming Seller as an additional insured. Purchaser, at all times, will conduct such due diligence in compliance with all applicable laws, laws and in a manner so as to not cause damage, loss, cost or expense to Seller, the Company Parties, any Property or the tenants or guests of any the Property, and without unreasonably interfering with or disturbing any employee, tenant or guest at the HotelsProperty. Other than required by applicable law, subpoena or other court order, Parent Purchaser shall not reveal to any governmental agency or any other third party (other than ParentPurchaser’s employees, agents, attorneys, trustees, lenders and advisors) not approved by the Company Seller the results of or any other information acquired pursuant to its inspections. Parent Purchaser will promptly restore any damage to the Property caused by ParentPurchaser’s inspection to its condition immediately preceding such inspections and examinations and will keep the Property free and clear of any mechanic’s liens or materialmen’s liens in connection with such inspections and examinations.
(f) . The cost of the inspections and tests undertaken pursuant to this Section 12.2 4.3 shall be borne solely by ParentPurchaser. Parent Purchaser shall indemnify, protect, defend, and hold the Company PartiesSeller, their 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 Parent Purchaser or its agents, employees or contractors occurring in connection with, or as a result of, such inspections, tests or examinations of the 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 Property.
(g) Parent condition already existing on the 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, until the Closing Date, that all such information and materials disclosed or and/or delivered to it by the Company PartiesSeller, or their Seller’s agents, employees and representatives, are confidential and proprietary information, and that Parent Purchaser shall hold the same in strict confidence, and shall not disclose the same to anyone other than its employeesagents, affiliates, financial partners, potential lenders, employees and advisors on a “need-to-know” basis subject to the confidentiality restrictions set forth herein. Parent Purchaser also agrees that, in the event the transactions contemplated in this Agreement are not consummated as provided hereinherein or Purchaser terminates this Agreement prior to the expiration of the Due Diligence Period, Parent Purchaser shall return all such information and documentation, and all copies thereof, thereof to the Company Seller promptly upon Seller’s request and certify to Seller that it has destroyed all materials prepared by or for Purchaser and/or its written request, together with copies of all third-party reports representatives utilizing any such information and studies obtained by Parent with respect to any of the Properties.
(h) documentation. Except as expressly provided in this Agreement, the Company Parties make Seller makes no representations or warranties as to the truth, accuracy or completeness of any third-party materials, data or other information, if any, supplied to Parent Purchaser in connection with ParentPurchaser’s inspection of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in the Company Parties’ Seller’s possession). It is the parties’ express understanding and agreement that any such materials are to be provided only for ParentPurchaser’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 PropertiesProperty, and, in doing so, Parent Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of each the Property and not on any third-party materials supplied by the Company PartiesSeller. Parent Purchaser expressly disclaims any intent to rely on any such third-party materials provided to it by the Company Parties Seller in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information.
(i) . The obligations of Parent Purchaser under this Section 12.2 4.3 (including its indemnification obligations) shall survive Closing the Close of Escrow or the termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chesapeake Lodging Trust)
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).
(b) Parent 4.3.2 Purchaser acknowledges that prior to the date of this Agreement, the Company Parties Sellers have delivered to ParentPurchaser, or the Company Parties Sellers have provided Parent Purchaser with access to, the information, documents, agreements and reports relating to the Property, as identified on Exhibit D attached hereto (collectively, the “certain Due Diligence Materials”). Parent Purchaser shall have until the expiration of the Due Diligence Period to review and approve the Due Diligence Materials.
(c) Prior to any entry by Parent or any of Parent’s Representatives onto any Property, Parent shall: (i) if Parent does not then have such a policy in force, procure a policy of commercial general liability insurance, issued by an insurer reasonably satisfactory to the Company Parties covering all of Parent’s activities, with a single limit of liability (per occurrence and aggregate) of not less than $2,000,000.00; and (ii) deliver to the Company Parties a Certificate of Insurance, evidencing that such insurance is in force and effect, and evidencing that the Company Parties have been named as an additional insured thereunder with respect to any Parent’s activities (such Certificate of Insurance shall be delivered to the Company Parties). Such insurance shall be written on an “occurrence” basis, and shall be maintained in force until the earlier of (x) the termination of this Agreement and the conclusion of all Parent’s activities, or (y) Closing.
(d) 4.3.3 During the Due Diligence Period, Parent Purchaser shall also shall have the opportunity to conduct a Phase I environmental audit/study of all Real Property, provided such Phase I environmental audit/study is not invasive or intrusive. Any environmental audit/study study, other than the Phase I, proposed to be undertaken by Parent Purchaser shall be subject to the Company’s Sellers’ written approval, which shall not be unreasonably withheld, prior to the commencement thereof. As a condition to any such consent, Purchaser shall, or shall cause the entity conducting the Phase I environmental audit/study to, obtain and maintain such public liability insurance in an amount of Two Million Dollars ($2,000,000) for each Property, naming as an additional insured the Seller owning such Real Property. At any time prior to 5:00 p.m. Washington, DC time on the last day of the Due Diligence Period, Purchaser shall have the right in its sole discretion to terminate this Agreement for any reason or no reason at all, in which event Escrow Holder shall deliver the Xxxxxxx Money Deposit to Purchaser.
(e) Parent4.3.4 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 the Company PartiesSellers, any Property or the tenants or guests of any Property, and without unreasonably interfering with or disturbing any employee, tenant or guest at the Hotels. Other than required by applicable law, subpoena or other court order, Parent shall not reveal to any governmental agency or any other third party (other than Parent’s employees, agents, attorneys, lenders and advisors) not approved by the Company the results of or any other information acquired pursuant to its inspections. Parent Purchaser will promptly restore any damage to the Property caused by ParentPurchaser’s inspection to its condition immediately preceding such inspections and examinations and will keep the Property free and clear of any mechanic’s liens or materialmen’s liens in connection with such inspections and examinations.
(f) 4.3.5 The cost of the inspections and tests undertaken pursuant to this Section 12.2 4.3 shall be borne solely by ParentPurchaser. Parent Purchaser shall indemnify, protect, defend, and hold the Company PartiesSellers, their Sellers’ lenders, 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 Parent Purchaser or its agents, employees or contractors occurring in connection with, or as a result of, such inspections, tests or examinations of any Property. In the event that Purchaser elects to terminate this Agreement prior to the end of the Due Diligence Period or upon any other termination of this Agreement, except by reason of Seller’s default, Purchaser shall deliver to Seller copies of all third-party reports received by Purchaser with respect to the Property.
(g) Parent covenants and agrees that4.3.6 Subject to Section 12.17, until the Closing DateClose of Escrow, all such Purchaser shall endeavor in good faith not to disseminate any information and or materials disclosed or and/or delivered to it by the Company PartiesSellers, or their Sellers’ agents, employees and representatives, are confidential and proprietary information, and that Parent shall hold the same in strict confidence, and shall not disclose the same to anyone other than its employees, affiliates, financial partners, potential lenders, and advisors on a “need-to-know” basis subject representatives which relate to the confidentiality restrictions set forth hereinoperations of the Property and whose dissemination could harm the operations of the Property. Parent Purchaser also agrees that, that in the event the transactions contemplated in this Agreement are not consummated as provided herein, Parent Purchaser shall return all such information and documentationmaterials disclosed and/or delivered to it by Sellers, or Sellers’ agents, employees and representatives, and all copies thereof, to the Company Sellers promptly upon its written Sellers’ request, together with copies of all third-party reports and studies obtained by Parent with respect to any of the Properties.
(h) 4.3.7 Except as expressly provided in this Agreement, the Company Parties Sellers make no representations or warranties as to the truth, accuracy or completeness of any materials, data or other information, if any, supplied to Parent Purchaser in connection with ParentPurchaser’s inspection of the Property (e.g., that such materials are complete, accurate or the final version thereof, or that all such materials are in the Company PartiesSellers’ possession). It is the parties’ express understanding and agreement that any such materials are to be provided only for ParentPurchaser’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 Properties, and, in doing so, Parent Purchaser shall rely exclusively on its own independent investigation and evaluation of every aspect of each Property and not on any materials supplied by the Company PartiesSellers. Parent Purchaser expressly disclaims any intent to rely on any such materials provided to it by the Company Parties Sellers in connection with its inspection and agrees that it shall rely solely on its own independently developed or verified information.
(i) 4.3.8 The obligations of Parent Purchaser under this Section 12.2 4.3 (including its indemnification obligations) shall survive Closing the Close of Escrow or the termination of this Agreement.
4.3.9 Notwithstanding any provision herein to the contrary, so long as Purchaser has ordered (i) the Phase I environmental audit/study (the “Environmental Report”) and (ii) an engineering PCA report (the “PCA Report”) (together the Environmental Report and the PCA Report are referred to as the “Reports”) by the seventh (7th) business days following the Effective Date, then, in the event that any one or more of these items has not been delivered by the date which is the fourth (4th ) business day prior to the expiration of the Due Diligence Period (a “Late Report”), Purchaser shall have the right, by written notice to Seller, given not later than the expiration of the third (3rd ) business day prior to the expiration of the Due Diligence Period, to extend its right to terminate this Agreement (and to receive a refund of the Deposit) for an additional fifteen (15) day period (the “Limited Due Diligence Period”), but such extended right to terminate shall be exercisable solely by reason of unsatisfactory matters disclosed in the Late Report during such Limited Due Diligence Period.
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Samples: Purchase and Sale Agreement (Chatham Lodging Trust)
