Common use of Inspection; Feasibility Period Clause in Contracts

Inspection; Feasibility Period. (a) Purchaser acknowledges that Seller has provided or made available to Purchaser, without any representation or warranty whatsoever as to accuracy, truth or completeness, copies of the following documents relating to the Property to the extent in Seller’s possession or control (the “Feasibility Materials”): (i) the latest property tax bills; (ii) the Environmental Documents and Seller’s property condition reports, if any; (iii) Seller’s existing plans, specifications, approvals (and any outstanding applications for permits or approvals), maps and surveys, if any; (iv) copies of the Space Leases, Equipment Leases, Service Contracts and Rooms Agreements; (v) Seller’s existing title policies, if any; (vi) any written notices or citations relating to outstanding alleged violations relating to the Property from any applicable governmental authorities, if any; (vii) all agreements with or outstanding applications to any governmental authority with respect to any zoning modification, variance, exception or platting of the Property, if any; and (viii) copies of all Permits and licenses. Purchaser shall have the right, upon reasonable notice to Seller, at its own risk, cost and expense and at any mutually agreeable date or dates prior to Closing, to enter, or cause its agents or representatives to enter, upon the Property for the purpose of making surveys, inspections, investigations and/or studies of the Property; provided, however, that Purchaser shall not conduct any invasive studies, tests, or samplings, including, without limitation, any environmental or air quality sampling, without the advance written consent of Seller in each instance, which consent may be withheld in Seller’s sole and absolute discretion. Purchaser shall not make any physical alterations to the Property, such entry shall not interfere with the guests, tenants, or management of the Property, and Purchaser shall indemnify, defend and hold harmless Seller from any cost, claim or expense (including, without limitation, reasonable attorneys’ fees and costs) arising out of any entry onto the Property by Purchaser, its agents and/or representatives. Purchaser shall promptly repair all damage to the Property arising from any such inspections or tests and shall restore the Property to the same condition existing immediately prior to such inspections and tests and shall keep the Property free and clear of any liens that may arise as a result thereof. In the event Purchaser discovers any matter in the course of its investigations and tests which may be reportable under applicable law, Purchaser acknowledges and agrees that it shall not undertake any such reporting but shall notify Seller immediately of any such discovery, and shall not thereafter make any report unless failure to do so would violate applicable law. If Purchaser elects to terminate this Agreement pursuant to Section 6.7(b), Purchaser shall supply Seller with copies of any tests, studies or inspections of the Property performed hereunder, provided that Purchaser’s delivery of such materials shall not constitute a representation or warranty as to any of the information contained therein. On or before the Contract Date, Purchaser shall have obtained or caused its agents or contractors to obtain policies of general liability insurance which (i) insure Purchaser and such of its agents and representatives who so enter upon the Property with liability insurance limits not less than $2,000,000 combined single limit for personal injury and property damage, (ii) name Seller and Manager as additional insureds, and (iii) are with such insurance companies as are reasonably acceptable to Seller and provide such coverage and carry such other limits as Seller shall reasonably require. Upon request of Seller, Purchaser shall provide Seller with certificates of insurance evidencing that Purchaser has obtained the aforementioned policies of insurance. (b) If, during the period between October 15, 2010 and October 28, 2010 (the “Feasibility Period”), Purchaser gives Seller written notification (the “Termination Notice”) that Purchaser, pursuant to Section 6.6 (c), elects not to consummate the purchase of all of the Property in accordance with the terms of this Agreement, this Agreement shall terminate, in which event Purchaser shall be entitled to receive the return of the Deposit and neither party shall have any further liabilities or obligations to the other party, except for those expressly stated to survive the termination of this Agreement. (c) The Purchaser shall have the right to give the Termination Notice, if the Purchaser concludes, in its sole discretion, that the Property is unacceptable or not suitable for Purchaser’s purposes for any reason, including, without limitation, Purchaser’s determination that a (i) defect in title or survey materially interferes with the operation of the Hotel; (ii) the financial condition of the Hotel or its operations are unsatisfactory to Purchaser, based on the financial review and analysis of the Hotel undertaken during the Feasibility Period; (iii) the results of the Phase I Environmental Assessment conducted during the Feasibility Period are unsatisfactory to Purchaser; or (iv) an outstanding lawsuit or pending claim that would, if determined adversely, have a material adverse effect on the operations or finances of the Hotel. If Purchaser elects not to give the Termination Notice prior to the expiration of the Feasibility Period as provided in this Section 6.6(c), this Agreement shall remain in full force and effect. (d) The provisions of Section 6.6(a) shall survive any termination of this Agreement or the Closing, as applicable.

Inspection; Feasibility Period. (a) Purchaser acknowledges that Seller has provided or made available to Purchaser, without any representation or warranty whatsoever as to accuracy, truth or completeness, copies of the following documents relating to the Property to the extent in Seller’s possession or control (the “Feasibility Materials”): (i) the latest property tax bills; (ii) the Environmental Documents and Seller’s property condition reports, if any; (iii) Seller’s existing plans, specifications, approvals (and any outstanding applications for permits or approvals), maps and surveys, if any; (iv) copies of the Space Leases, Equipment Leases, Service Contracts and Rooms Agreements; (v) Seller’s existing title policies, if any; (vi) any written notices or citations relating to outstanding alleged violations relating to the Property from any applicable governmental authorities, if any; (vii) all agreements with or outstanding applications to any governmental authority with respect to any zoning modification, variance, exception or platting of the Property, if any; and (viii) copies of all Permits and licenses. Purchaser shall have the right, upon reasonable notice to Seller, at its own risk, cost and expense and at any mutually agreeable date or dates prior to Closing, to enter, or cause its agents or representatives to enter, upon the Property for the purpose of making surveyssurveys or other tests, test borings, inspections, investigations and/or studies of the Property; provided. In addition, howeverPurchaser may conduct such architectural, that structural, environmental, economic and other studies of the Property as Purchaser shall not conduct any invasive studiesmay, testsin its sole discretion, or samplings, including, without limitation, any environmental or air quality sampling, without the advance written consent of Seller in each instance, which consent may be withheld in Seller’s sole and absolute discretiondeem desirable. Purchaser shall not make any physical alterations to the Property, such entry shall not unreasonably interfere with the guests, tenants, guests or management of the Property, and Purchaser shall indemnify, defend indemnify and hold Seller harmless Seller from any cost, claim or expense in connection therewith (includingwhich indemnification shall survive the Closing or earlier termination of this Agreement), without limitationexcept that Purchaser's obligations as set forth in this sentence shall not extend to previously existing conditions that are discovered by Purchaser to be present on, reasonable attorneys’ fees under or about the Property. Purchaser shall have complete access to all documentation, agreements and costs) arising out other information in the possession of Seller or Seller's agents related to the Property, as well as any entry onto documents at the Property to which Seller has access (which Seller may, in lieu of delivery to Purchaser, post on the Broker's website) and shall have the right to make copies of same. Seller also shall permit Purchaser to contact certain personnel employed by Manager at the Resort upon not less than two (2) days advance request to Seller. Seller shall permit Purchaser, its agents and/or representatives. Purchaser shall promptly repair all damage to and employees, reasonable use of complimentary rooms at the Property arising from any such inspections or tests and shall restore the Property food and beverage services at cost (subject to the same condition existing immediately prior to such inspections and tests and shall keep the Property free and clear of any liens that may arise as a result thereof. In the event Purchaser discovers any matter in the course of its investigations and tests which may be reportable under applicable law, Purchaser acknowledges and agrees that it shall not undertake any such reporting but shall notify Seller immediately of any such discovery, and shall not thereafter make any report unless failure to do so would violate applicable lawavailability). If Purchaser elects to terminate this Agreement pursuant to Section 6.7(b), Purchaser shall agrees to supply Seller with copies the results of any tests, studies or inspections of the Property performed hereunder, provided that Purchaser’s delivery within five (5) days of such materials shall not constitute a representation or warranty as to any of the information contained therein. On or before the Contract Date, Purchaser shall have obtained or caused its agents or contractors to obtain policies of general liability insurance which (i) insure Purchaser and such of its agents and representatives who so enter upon the Property with liability insurance limits not less than $2,000,000 combined single limit for personal injury and property damage, (ii) name Seller and Manager as additional insureds, and (iii) are with such insurance companies as are reasonably acceptable to Seller and provide such coverage and carry such other limits as Seller shall reasonably require. Upon request of Seller, Purchaser shall provide Seller with certificates of insurance evidencing that Purchaser has obtained the aforementioned policies of insurancetermination. (b) If, during the period between October 15the Contract Date and 5 p.m. Eastern time on December 30, 2010 and October 28, 2010 2005 (the “Feasibility Period”"FEASIBILITY PERIOD"), Purchaser gives Seller written notification (the “Termination Notice”"TERMINATION NOTICE") that Purchaser, pursuant to Section 6.6 (c), Purchaser elects not to consummate the purchase of all of the Property in accordance with the terms of this Agreement, this Agreement shall terminate, in which event and the Deposit shall be returned immediately to Purchaser. Purchaser shall be entitled have the absolute right, in its sole discretion without a duty to receive exercise good faith, to determine whether to give the return of Termination Notice. If the Termination Notice is given, the Deposit shall be returned immediately to Purchaser and neither party shall have any further liabilities or obligations liability to the other partyunder this Agreement, except for those as expressly stated to survive the termination of this Agreement. (c) The Purchaser shall have the right to give the Termination Notice, if the Purchaser concludes, in its sole discretion, that the Property is unacceptable or not suitable for Purchaser’s purposes for any reason, including, without limitation, Purchaser’s determination that a (i) defect in title or survey materially interferes with the operation of the Hotel; (ii) the financial condition of the Hotel or its operations are unsatisfactory to Purchaser, based on the financial review and analysis of the Hotel undertaken during the Feasibility Period; (iii) the results of the Phase I Environmental Assessment conducted during the Feasibility Period are unsatisfactory to Purchaser; or (iv) an outstanding lawsuit or pending claim that would, if determined adversely, have a material adverse effect on the operations or finances of the Hotelset forth herein. If Purchaser elects not to give the Termination Notice prior to the expiration of the Feasibility Period as provided in this Section 6.6(c)Period, this Agreement shall remain in full force and effect. (d) The provisions of Section 6.6(a) shall survive any termination of this Agreement or the Closing, as applicable.

Inspection; Feasibility Period. (a) Purchaser acknowledges that Seller has provided or made available to Purchaser, without any representation or warranty whatsoever as to accuracy, truth or completeness, copies of the following documents relating to the Property to the extent in Seller’s possession or control (the “Feasibility Materials”): (i) the latest property tax bills; (ii) the Environmental Documents and Seller’s property condition reports, if any; (iii) Seller’s existing plans, specifications, approvals (and any outstanding applications for permits or approvals), maps and surveys, if any; (iv) copies of the Space Leases, Equipment Leases, Service Contracts and Rooms Agreements; (v) Seller’s existing title policies, if any; (vi) any written notices or citations relating to outstanding alleged violations relating to the Property from any applicable governmental authorities, if any; (vii) all agreements with or outstanding applications to any governmental authority with respect to any zoning modification, variance, exception or platting of the Property, if any; and (viii) copies of all Permits and licenses. Purchaser shall have the right, upon reasonable prior notice to Seller, at its own risk, cost and expense and at any mutually agreeable date or dates prior to Closing, to enter, or cause its agents or representatives to enter, upon the Property for the purpose of making surveyssurveys or other tests, test borings, inspections, investigations and/or studies of the Property; provided, however, provided that Purchaser shall not provides Seller with a certificate of insuring evidencing Purchaser's commercial general liability insurance with combined single limit coverage of at least $2,000,000 and naming Seller as an additional insured thereunder. In addition, Purchaser may conduct any invasive studiessuch architectural, testsenvironmental, or samplingseconomic and other studies of the Property as Purchaser may, includingin its sole discretion, without limitation, any environmental or air quality sampling, without the advance written consent of Seller in each instance, which consent may be withheld in Seller’s sole and absolute discretiondeem desirable. Purchaser shall not make any physical alterations to the PropertyProperty (and Purchaser hereby covenants to repair any damage or destruction to the Property caused thereby), such entry shall not interfere with the guests, tenants, guests or management of the Property, and Purchaser shall indemnify, defend indemnify and hold Seller harmless Seller from any cost, claim or expense (includingin connection therewith, without limitationexcept that Purchaser's obligations as set forth in this sentence shall not extend to previously existing conditions that are discovered by Purchaser to be present on, reasonable attorneys’ fees and costs) arising out of any entry onto under or about the Property by Purchaser, its agents and/or representativesProperty. Purchaser shall promptly repair have complete access to all damage documentation, agreements and other information in the possession of Seller or Seller's agents related to the Property arising from any such inspections or tests and shall restore have the Property right to the same condition existing immediately prior to such inspections and tests and shall keep the Property free and clear of any liens that may arise as a result make copies thereof. In the event Purchaser discovers any matter in the course of its investigations and tests which may be reportable under applicable law, Purchaser acknowledges and agrees that it shall not undertake any such reporting but shall notify Seller immediately of any such discovery, and shall not thereafter make any report unless failure to do so would violate applicable law. If Purchaser elects to terminate this Agreement pursuant to Section 6.7(b6.8(b), Purchaser shall agrees to supply Seller with copies the results of any tests, studies or inspections of the Property performed hereunder, provided that Purchaser’s delivery of such materials shall not constitute a representation or warranty as to any of the information contained therein. On or before the Contract Date, Purchaser shall have obtained or caused its agents or contractors to obtain policies of general liability insurance which (i) insure Purchaser and such of its agents and representatives who so enter upon the Property with liability insurance limits not less than $2,000,000 combined single limit for personal injury and property damage, (ii) name Seller and Manager as additional insureds, and (iii) are with such insurance companies as are reasonably acceptable to Seller and provide such coverage and carry such other limits as Seller shall reasonably require. Upon request of Seller, Purchaser shall provide Seller with certificates of insurance evidencing that Purchaser has obtained the aforementioned policies of insurance. (b) If, during the period between October 15, 2010 the Contract Date and October 28, 2010 the date which is sixty (the “Feasibility Period”60) thereafter (THE "FEASIBILITY PERIOD"), Purchaser gives Seller written notification (the “Termination Notice”THE "TERMINATION NOTICE") that Purchaser, pursuant to Section 6.6 (c), Purchaser elects not to consummate the purchase of all of the Property in accordance with the terms of this Agreement, this Agreement shall terminate, in which event Purchaser the Deposit shall be entitled returned immediately to receive the return of the Deposit Purchaser and neither party shall have any further liabilities or obligations liability to the other party, except for those expressly stated to survive the termination of under this Agreement. (c) . The Purchaser shall have the right to give the Termination Notice, if the Purchaser concludesabsolute right, in its sole discretion, that to determine whether to give the Property is unacceptable or not suitable for Purchaser’s purposes for any reason, including, without limitation, Purchaser’s determination that a (i) defect in title or survey materially interferes with the operation of the Hotel; (ii) the financial condition of the Hotel or its operations are unsatisfactory to Purchaser, based on the financial review and analysis of the Hotel undertaken during the Feasibility Period; (iii) the results of the Phase I Environmental Assessment conducted during the Feasibility Period are unsatisfactory to Purchaser; or (iv) an outstanding lawsuit or pending claim that would, if determined adversely, have a material adverse effect on the operations or finances of the HotelTermination Notice. If Purchaser elects not to give (or fails to give) the Termination Notice prior to the expiration of the Feasibility Period as provided in this Section 6.6(c)Period, this Agreement shall remain in full force and effect. (d) The provisions of Section 6.6(a) shall survive any termination of this Agreement or the Closing, as applicable.

Inspection; Feasibility Period. For the period prior to and including 6:00 p.m. EST of the close of business on August 20, 2005 (the "Feasibility Period"): (a) Purchaser acknowledges that Seller has provided or made available to Purchaser, without any representation or warranty whatsoever as to accuracy, truth or completeness, copies of the following documents relating to the Property to the extent in Seller’s possession or control (the “Feasibility Materials”): (i) the latest property tax bills; (ii) the Environmental Documents and Seller’s property condition reports, if any; (iii) Seller’s existing plans, specifications, approvals (and any outstanding applications for permits or approvals), maps and surveys, if any; (iv) copies of the Space Leases, Equipment Leases, Service Contracts and Rooms Agreements; (v) Seller’s existing title policies, if any; (vi) any written notices or citations relating to outstanding alleged violations relating to the Property from any applicable governmental authorities, if any; (vii) all agreements with or outstanding applications to any governmental authority with respect to any zoning modification, variance, exception or platting of the Property, if any; and (viii) copies of all Permits and licenses. Purchaser shall have the right, upon reasonable notice to Seller, at its own risk, cost and expense and at any mutually agreeable date or dates prior to Closing, to enter, or cause its agents or representatives to enter, upon the Property Hotel, accompanied by a Claremont Entity representative, with forty-eight hours prior notice to a Claremont Entity, for the purpose of making surveyssurveys or other tests, inspections, investigations and/or studies of all or any part of the Property; provided. In addition, howeverPurchaser may, that at its own risk, cost and expense, conduct such architectural, environmental, economic and other studies of the Property as Purchaser shall not conduct any invasive studiesmay, testsin its sole discretion, or samplings, including, without limitation, any environmental or air quality sampling, without the advance written consent of Seller in each instance, which consent may be withheld in Seller’s sole and absolute discretiondeem desirable. Purchaser shall not make any physical alterations to the PropertyProperty or any invasive tests. Purchaser shall conduct, and ensure that each of its agents, employees, contractors or representatives conducts, each such entry shall in a manner that does not unreasonably interfere with the guests, tenants, guests or management employees of the Property, Hotel; and Purchaser shall indemnify, defend indemnify and hold Sellers harmless Seller from any costand all claims, claim damages, demands, penalties, causes of action, liabilities, losses, costs or expense expenses (including, without limitation, including reasonable attorneys’ fees and costsother charges) arising out of or in any entry onto way related to personal injury (including death), property damage, material disruptions of operations, nuisance or other claims asserted by any person or entity relating to the Property by acts or omissions of Purchaser, or its agents and/or representatives. Purchaser shall promptly repair all damage to the Property arising from any such inspections agents, employees, contractors or tests and shall restore the Property to the same condition existing immediately prior to such inspections and tests and shall keep the Property free and clear of any liens that may arise as a result thereof. In the event Purchaser discovers any matter representatives in the course of its investigations and tests which may be reportable under applicable law, Purchaser acknowledges and agrees that it shall not undertake any such reporting but entry or inspection of the Hotel. The foregoing indemnity shall notify Seller immediately survive Closing or any termination of any such discoverythis Agreement. Purchaser shall have reasonable access to all documentation, agreements and other information in the possession of Sellers or Sellers’ agents related to the Property and shall not thereafter have the right to make any report unless failure to do so would violate applicable lawcopies of same. If Purchaser elects to terminate this Agreement pursuant to Section 6.7(b6.4(b), Purchaser shall agrees to supply Seller Sellers with all copies of the results of any tests, studies or inspections of the Property performed hereunder, provided that Purchaser’s delivery of such materials shall not constitute a by third parties for Purchaser hereunder (without representation or warranty as by Purchaser) and to any return to Sellers the copies of the information contained therein. On or before the Contract Datedocumentation, Purchaser shall have obtained or caused its agents or contractors to obtain policies of general liability insurance which (i) insure Purchaser and such of its agents and representatives who so enter upon the Property with liability insurance limits not less than $2,000,000 combined single limit for personal injury and property damage, (ii) name Seller and Manager as additional insuredsagreements, and (iii) are with such insurance companies as are reasonably acceptable other information which Sellers have given or made available to Seller and provide such coverage and carry such other limits as Seller shall reasonably require. Upon request of Seller, Purchaser shall provide Seller with certificates of insurance evidencing that Purchaser has obtained the aforementioned policies of insurancePurchaser. (b) If, at any time during the period between October 15, 2010 and October 28, 2010 (the “Feasibility Period”), Purchaser gives Seller a Claremont Entity written notification (the “Termination Notice”) that Purchaser, pursuant to Section 6.6 (c), Purchaser elects not to consummate the purchase of all of the Property in accordance with the terms of this AgreementAgreement for any reason or no reason, this Agreement shall terminate, in which event Purchaser shall be entitled return the copies of all documentation, agreements, and other information Sellers have given or made available to receive the return Purchaser and copies of all third-party reports Purchaser has obtained, whereupon the Deposit shall be returned to Purchaser and neither party shall have any further liabilities or obligations liability to the other partyunder this Agreement except as otherwise specifically provided herein. In the event that the Termination Notice is not received by a Claremont Entity by the end of the Feasibility Period, except for those expressly stated to survive the termination of this Agreement. (c) The Purchaser shall have the right been deemed to give the Termination Noticehave elected to proceed hereunder, if the Purchaser concludes, in its sole discretion, that the Property is unacceptable or not suitable for Purchaser’s purposes for any reason, including, without limitation, Purchaser’s determination that a (i) defect in title or survey materially interferes with the operation of the Hotel; (ii) the financial condition of the Hotel or its operations are unsatisfactory to Purchaser, based on the financial review and analysis of the Hotel undertaken during the Feasibility Period; (iii) the results of the Phase I Environmental Assessment conducted during the Feasibility Period are unsatisfactory to Purchaser; or (iv) an outstanding lawsuit or pending claim that would, if determined adversely, have a material adverse effect on the operations or finances of the Hotel. If Purchaser elects not to give the Termination Notice prior to the expiration of the Feasibility Period as provided in this Section 6.6(c), this Agreement shall remain in full force and effect. (dc) The provisions Purchaser acknowledges and agrees that it has, prior to the date hereof, been afforded the opportunity to make such tests, inspections, investigations and/or studies of Section 6.6(a) shall survive all or any termination part of this Agreement or the ClosingProperty as Purchaser deemed necessary, including review of title to and survey of the Property, as applicablewell as architectural, environmental, and economic studies of the Property and is being given an additional period in accordance with subsection (a) above to conduct such additional inspections as it desires. Accordingly, the Sellers shall not be obligated to take any action or expend any money in respect to the Property for any purposes whatsoever whether before, during or after final closing. The Purchaser agrees to accept the Property in its existing "as is” condition.