Common use of Physical Due Diligence Clause in Contracts

Physical Due Diligence. Commencing on the Effective Date and continuing until the Closing, Purchaser shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Purchaser must give Seller two full Business Days’ prior telephone or written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Seller’s prior written consent (which consent may be given, withheld or conditioned in Seller’s sole discretion), (b) prior to performing any inspection or test, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser has in place and Purchaser shall cause its contractors, agents and representatives to deliver certificates of insurance evidencing that they have in place (and Purchaser and its contractors, agents and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least Two Million Dollars ($2,000,000) for bodily or personal injury or death, (2) property damage insurance in the amount of at least Two Million Dollars ($2,000,000), (3) contractual liability insurance with respect to Purchaser’s obligations hereunder, and (4) workers’ compensation insurance in accordance with applicable law, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance shall (A) name as additional insureds thereunder, except with respect to Workers’ Compensation Insurance, Seller and such other parties holding insurable interests as Seller may designate and (B) be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, and (c) all such tests shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 below. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any tenant; provided, however, Purchaser must contact Seller at least five full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any tenant and to allow Seller the opportunity to participate in such communication if Seller desires. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any governmental authority for the sole purpose of gathering information in connection with the transaction contemplated by this Agreement; provided, however, Purchaser must contact Seller at least five full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to allow Seller the opportunity to participate in such communication if Seller desires. As used in this Section, “communicate” and “communication” shall mean the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means for the purpose of knowingly subverting the provisions of this Section regarding Purchaser’s obligations to provide Seller with prior notice of such communication and Seller’s ability to participate in such communication.

Physical Due Diligence. Commencing on the Effective Date and continuing until the Closing, subject to the terms of any Leases and guests of the Hotel, Purchaser and its contractors, agents, consultants and representatives shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants and Hotel guests as permitted or required under the LeasesLeases or any applicable occupancy agreements, for the purpose of conducting reasonably necessary conducting, at Purchaser’s sole cost and expense, tests, studies and investigations, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Purchaser must give Seller two full at least one (1) Business Days’ Day’s prior telephone or written notice delivered via e-mail of any such inspection tests, studies or testinvestigations, and with respect to any intrusive inspection test, study or test investigation (i.e.e.g., core sampling) must obtain Seller’s prior written consent (which consent may be given, withheld or conditioned in Seller’s sole discretion), (b) prior to performing any inspection test, study or testinvestigation, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser has in place and Purchaser shall cause its contractors, agents agents, consultants and representatives to deliver certificates of insurance evidencing that they have in place (and Purchaser and its contractors, agents agents, consultants and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least Two Million Dollars ($2,000,000) for bodily or personal injury or death, (2) death and property damage insurance in the amount of at least Two Million Dollars ($2,000,000), (3) including coverage for contractual liability insurance and personal and advertising injury with respect to Purchaser’s obligations hereunder, and (42) workers’ compensation and employers’ liability insurance in accordance with applicable lawlimits of at least $100,000 each accident, $100,000 each employee and $500,000 policy limit, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance insurance, except for workers’ compensation and employers’ liability, shall (A) name as additional insureds thereunder, except with respect to Workers’ Compensation Insurance, thereunder Seller and such other parties holding insurable interests as Seller may designate designate, and (B) be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, and (c) all such tests shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 4.8 below. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement. Subject to the provisions of Section 4.7 Sections 4.8 and 12.8 hereof, Purchaser or Purchaser’s representatives may communicate with any tenanttenant of the Real Property; provided, however, Purchaser must contact shall give Seller at least five full Business Days in advance by telephone to inform Seller reasonable prior written notice delivered via e-mail of Purchaser’s intended communication with any tenant and to allow Seller the opportunity to participate in such communication if Seller desirestenant. Subject to the provisions of Section 4.7 Sections 4.8 and 12.8 hereof, Purchaser or Purchaser’s representatives may communicate with any governmental authority for the sole purpose of gathering information regarding then current zoning or permit compliance of the Real Property, the environmental condition of the Real Property and the Improvements (but only to the extent such communication is reasonably and customarily required in order for Purchaser’s environmental consultant to be able to prepare a Phase I environmental site assessment for the Property) and then current entitlements with respect to the Real Property in connection with the transaction contemplated by this Agreement; provided, however, Purchaser must contact give Seller at least five full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to allow Seller the opportunity to participate in such communication if Seller desires. As used in this Section, “communicate” and “communication” shall mean the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means for the purpose of knowingly subverting the provisions of this Section regarding Purchaser’s obligations to provide Seller with 24 hours’ prior notice of such communication and Seller’s ability to participate in such communication.written

Physical Due Diligence. Commencing on the Effective Date and continuing until the Closing, subject to the terms of any Leases, Purchaser shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting reasonably necessary such inspections, tests, including surveys and examinations as Purchaser shall determine, in its reasonable discretion, are necessary to properly evaluate the condition of the Property, including, without limitation, surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Purchaser must give Seller two (2) full Business Days’ prior telephone or written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Seller’s prior written consent (which consent may be given, withheld or conditioned in Seller’s sole discretion), (b) prior to performing any inspection or test, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser has in place and Purchaser shall cause its contractors, agents and representatives to deliver certificates of insurance evidencing that they have in place (and Purchaser and its contractors, agents and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least One Million Dollar ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate for bodily or personal injury or death, (2) death and property damage insurance in the amount of at least Two Million Dollars ($2,000,000), (3) including coverage for contractual liability insurance and personal and advertising injury with respect to Purchaser’s obligations hereunder, and (42) workers’ compensation and employers’ liability insurance in accordance with applicable lawlimits of at least $100,000 each accident, $100,000 each employee and $500,000 policy limit, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance insurance, except for workers’ compensation and employers’ liability, shall (A) name as additional insureds thereunder, except with respect to Workers’ Compensation Insurance, thereunder Seller and such other parties holding insurable interests as Seller may designate and (B) be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, and (c) all such tests shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 below. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement. Subject Purchaser is not permitted to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any tenant; provided, however, Purchaser must contact Seller at least five full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any tenant and to allow Seller the opportunity to participate in such communication if Seller desires. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any governmental authority for to gather information regarding then current zoning compliance of the sole purpose of gathering information Real Property and then current entitlements with respect to the Real Property in connection with the transaction contemplated by this Agreement; provided, however, Purchaser must contact Seller at least five three (3) full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to allow Seller the opportunity to participate in such communication if Seller desires. As used in this SectionSection 4.3, “communicate” and “communication” shall mean the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means for means. In the purpose event Seller fails to allow the Purchaser reasonable access to the Property prior to the expiration of knowingly subverting the provisions Inspection Period to perform the tests, inspections or evaluations described in this Section, the Purchaser shall be entitled to deliver the Due Diligence Termination Notice and receive the return of this Section regarding Purchaser’s obligations to provide Seller with prior notice of such communication and Seller’s ability to participate in such communicationthe Xxxxxxx Money.

Physical Due Diligence. Commencing on the Effective Date and continuing until the ClosingClosing or earlier termination of this Agreement, Purchaser shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, engineering and geotechnical and environmental inspections and teststests and an ASTM standard Phase I environmental site assessment (individually, a “Purchaser Investigation”, and collectively, the “Purchaser Investigations”), provided that (a) Purchaser must give Seller two one full Business Days’ prior telephone or Day’s written notice of any such inspection or testPurchaser Investigation (which notice may be delivered by electronic mail to [***], and with respect to any Purchaser Investigation of an intrusive inspection nature (including, without limitation, collection of air, soil, groundwater, or building material samples or soil cores or any test (i.e., core samplingdesigned to identify the presence of Hazardous Materials) must obtain Seller’s prior written consent (which consent may be given, withheld or conditioned in Seller’s sole discretion, including, without limitation, on Seller’s right to take split or duplicate samples from any such intrusive inspection or test for purposes of conducting, at Seller’s sole cost, its own inspection or test thereof), (b) prior to performing any inspection or testPurchaser Investigation, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser has in place and Purchaser shall cause its contractors, agents and representatives to deliver certificates of insurance evidencing that they have in place (and Purchaser and its contractors, agents and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least Two Million Dollars ($2,000,000) [***] for bodily or personal injury or death, (2) property damage insurance in the amount of at least Two Million Dollars ($2,000,000)[***], (3) including coverage for contractual liability insurance and personal and advertising injury with respect to Purchaser’s obligations hereunder, and (43) workers’ compensation and employers’ liability insurance in accordance with applicable law, but in all cases with limits of at least [***] each accident, [***] each employee and [***] policy limit, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance insurance, except for workers’ compensation and employers’ liability, shall (A) name as additional insureds thereunder, except with respect to Workers’ Compensation Insurance, thereunder Seller and such other parties holding insurable interests as Seller may designate and (B) be written by a reputable insurance company having a rating of at least “A+:VIIA-:VIII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, and (c) all such tests Purchaser Investigations shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 4.8 below. Seller shall have the right, but not the obligation, to be present, or have one or more of its own consultants present, during any interview or Purchaser Investigation. Purchaser shall bear the cost of all such inspections or tests Purchaser Investigations and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement; provided, however, that such responsibility shall not include any responsibility for pre-existing liabilities for matters merely discovered by Purchaser (i.e., latent environmental contamination) so long as Purchaser’s actions do not aggravate any pre-existing liability of the Seller. Subject to the provisions of Section 4.7 4.6 hereof, Purchaser or Purchaser’s representatives may communicate with any tenant; provided, however, Purchaser must contact notify Seller at least five full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any tenant and to allow Seller the opportunity to participate in such communication if Seller desires. Subject to the provisions of Section 4.7 4.6 hereof, Purchaser or Purchaser’s representatives may communicate with any governmental authority for the sole purpose of gathering information regarding then-current zoning compliance of the Real Property and the then-current entitlements with respect to the Real Property in connection with the transaction contemplated by this Agreement; providedAgreement and searching publicly available databases regarding the Property. However, howeverwith respect to any other communications with governmental authorities, Purchaser must contact Seller at least five full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to obtain Seller’s consent with respect thereto, and if Seller so consents, to allow Seller the opportunity to participate in such communication if Seller desires. As used in this Section, “communicate” and “communication” shall mean include the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means for the purpose of knowingly subverting the provisions of this Section regarding Purchaser’s obligations to provide Seller with prior notice of such communication and Seller’s ability to participate in such communication. All policies of insurance required under this Agreement shall contain a waiver of subrogation endorsement, shall provide that the coverage is primary and is not in excess of or contributing with any insurance or self-insurance maintained by Seller or any of its affiliates, investors, lenders or consultants, and shall be kept and maintained in force during the term of this Agreement and so long thereafter as necessary to cover any claims of damages suffered by persons or property resulting from any acts or omissions of Purchaser, its employees, agents, contractors, suppliers, consultants or other related parties.

Physical Due Diligence. Commencing on the Effective Date and continuing until the Closing, Purchaser shall have reasonable access to the Property at all reasonable times during normal business hours, upon appropriate notice to tenants as permitted or required under the Leases, Leases for the purpose of conducting reasonably necessary tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (a) Purchaser must give Seller two full Business Days’ prior telephone or written notice of any such inspection or test, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Seller’s prior written consent (which consent may be given, withheld or conditioned in Seller’s sole discretion), (b) prior to performing any inspection or test, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser has in place and Purchaser shall cause its contractors, agents and representatives to deliver certificates of insurance evidencing that they have in place (and Purchaser and its contractors, agents and representatives shall maintain during the pendency of this Agreement) (1) commercial general liability insurance with limits of at least Two Five Million Dollars ($2,000,0005,000,000) for bodily or personal injury or death, (2) property damage insurance in the amount of at least Two Five Million Dollars ($2,000,0005,000,000), (3) contractual liability insurance with respect to Purchaser’s obligations hereunder, and (4) workers’ compensation insurance in accordance with applicable law, all covering any accident arising in connection with the presence of Purchaser, its contractors, agents and representatives on the Property, which insurance shall (A) name as additional insureds thereunder, except with respect to Workers’ Compensation Insurance, thereunder Seller and such other parties holding insurable interests as Seller may designate and (B) be written by a reputable insurance company having a rating of at least “A+:VII” by Best’s Rating Guide (or a comparable rating by a successor rating service), and (C) otherwise be subject to Seller’s prior approval, and (c) all such tests shall be conducted by Purchaser in compliance with Purchaser’s responsibilities set forth in Section 4.9 below. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for and act as the generator with respect to any wastes generated by those tests, which obligation shall survive the termination of this Agreement. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any tenant; provided, however, Purchaser must contact Seller at least five full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any tenant and to allow Seller the opportunity to participate in such communication if Seller desires. Subject to the provisions of Section 4.7 hereof, Purchaser or Purchaser’s representatives may communicate with any governmental authority for the sole purpose of gathering information in connection with the transaction contemplated by this Agreement; provided, however, Purchaser must contact Seller at least five full Business Days in advance by telephone to inform Seller of Purchaser’s intended communication with any governmental authority and to allow Seller the opportunity to participate in such communication if Seller desires. As used in this Section, “communicate” and “communication” shall mean the initiation of, response to, or sharing or exchange of information, knowledge or messages, whether by oral, written or electronic methods or media, or by any other means for the purpose of knowingly subverting the provisions of this Section regarding Purchaser’s obligations to provide Seller with prior notice of such communication and Seller’s ability to participate in such communication.such