OF LITIGATION RECEIVED BY SELLER THAT WILL MATERIALLY AND
NEGATIVELY AFFECT THE OWNERSHIP OR OPERATION OF THE PROPERTY.
9.3.6
PURCHASER'S AUDIT.
PURCHASER HAS ADVISED SELLER THAT PURCHASER
MUST CAUSE PURCHASER HAS ADVISED SELLER THAT PURCHASER MUST CAUSE TO BE PREPARED
AUDITED FINANCIAL STATEMENTS FOR THE CALENDAR YEAR 2005 AND THE PARTIAL CALENDAR
YEAR 2006 (FROM JANUARY 1 UP TO THE CLOSING DATE) (THE "COVERED AUDIT PERIOD")
IN RESPECT TO THE PROPERTY IN COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS,
INCLUDING WITHOUT LIMITATION, SECURITIES AND EXCHANGE COMMISSION REGULATION S, X
AND RULE 3-14.
SELLER AGREES TO USE REASONABLE EFFORTS TO COOPERATE WITH
PURCHASER'S AUDITORS IN THE PREPARATION OF SUCH AUDITED FINANCIAL STATEMENTS (IT
BEING UNDERSTOOD AND AGREED THAT THE FOREGOING COVENANT SHALL SURVIVE CLOSING).
WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, (I) SELLER SHALL
DURING NORMAL BUSINESS HOURS AND UPON PURCHASER'S PRIOR WRITTEN REQUEST ALLOW
PURCHASER'S AUDITORS REASONABLE ACCESS TO SUCH BOOKS AND RECORDS MAINTAINED BY
SELLER (AND SELLER'S MANAGER OF THE PROPERTY) IN RESPECT TO THE PROPERTY AND
PERTAINING TO THE COVERED AUDIT PERIOD AS NECESSARY TO PREPARE SUCH AUDITED
FINANCIAL STATEMENTS; (II) SELLER SHALL USE REASONABLE EFFORTS TO PROVIDE TO
PURCHASER SUCH EXISTING FINANCIAL INFORMATION AS IS REASONABLY REQUESTED BY
PURCHASER AND REQUIRED FOR PURCHASER'S AUDITORS TO PREPARE AUDITED FINANCIAL
STATEMENTS, AND
(III) TO THE EXTENT UNDER SELLER'S EMPLOY AND CONTROL, SELLER
WILL UPON PURCHASER'S WRITTEN REQUEST MAKE AVAILABLE FOR INTERVIEW BY BUYER AND
BUYER'S AUDITORS THE MANAGER OF THE PROPERTY OR OTHER AGENTS OR REPRESENTATIVES
OF SELLER RESPONSIBLE
19
FOR THE DAY-TO-DAY OPERATION OF THE PROPERTY AND THE KEEPING OF THE BOOKS AND
RECORDS IN RESPECT OF THE OPERATION OF THE PROPERTY.
NOTWITHSTANDING ANYTHING
CONTAINED IN THIS SECTION 9.3.6 TO THE CONTRARY, IN NO EVENT SHALL SELLER BE
OBLIGATED TO (I) MAKE AND/OR OBTAIN FROM SELLER (OR AN AFFILIATE OF SELLER OR
ANY OF SELLER'S OR ITS AFFILIATES' AUDITORS) ANY REPRESENTATIONS OR CERTIFICATES
REGARDING SUCH FINANCIAL INFORMATION, OR (II) DISCLOSE ANY CONFIDENTIAL OR
NON-PUBLIC FINANCIAL INFORMATION WITH RESPECT TO ANY AFFILIATE OF SELLER OR ANY
PROPERTY OF ANY SUCH AFFILIATE.
If Seller fails to perform any of the covenants contained in this Section 9.3
hereof and either Purchaser receives written notice thereof from Seller pursuant
to the notice provisions hereof prior to Closing or Purchaser shall have actual
knowledge of a default by Seller under this Section 9.3 prior to Closing,
Purchaser shall have the rights and remedies available to Purchaser under
Section 7.1 hereof, and if Purchaser elects to close and consummate the
transaction contemplated by this Agreement in lieu of exercising its rights and
remedies under Section 7.1 hereof, then such default by Seller shall be deemed
to be waived by Purchaser at the Closing, and to the extent such default by
Seller is the entering into by Seller of New Lease(s), new Service Contracts or
any other agreements in violation of Section 9.3.1, Section 9.3.2, or Section
9.3.4 hereof, Purchaser shall at Closing accept an assignment of Seller's rights
thereunder and assume the obligations