FOUND IN THE WAR ROOM OR
OFFERING PACKAGE (TOGETHER WITH ANY OTHER INFORMATION PROVIDED TO BUYER BY THE
SELLERS IN ACCORDANCE WITH THIS AGREEMENT, THE "DUE DILIGENCE MATERIALS") DO NOT
(AND ARE NOT INTENDED TO) INCLUDE ANY PROTECTED INFORMATION (AS DEFINED BELOW).
PRIOR TO CLOSING, EACH SELLER WILL COOPERATE WITH BUYER AND SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO MAKE AVAILABLE OTHER SPECIFIC INFORMATION
RELATING TO SUCH SELLER'S PROPERTY (OTHER THAN PROTECTED INFORMATION) THAT BUYER
MAY REASONABLY REQUEST TO THE EXTENT IN SUCH SELLER'S OR ITS AGENT'S POSSESSION
OR CONTROL AND TO THE EXTENT READILY AVAILABLE.
NOTWITHSTANDING THE FOREGOING,
IT SHALL NOT
IN AND OF ITSELF BE DEEMED A DEFAULT BY SELLERS UNDER THIS
AGREEMENT IF SELLERS DO NOT DELIVER OR MAKE AVAILABLE ANY DUE DILIGENCE MATERIAL
TO BUYER, NOR WILL THE SAME CONSTITUTE A FAILURE OF A CONDITION TO CLOSING
UNLESS AND TO THE EXTENT EXPRESSLY PROVIDED TO THE CONTRARY IN THIS AGREEMENT.
AS USED HEREIN, THE TERM "PROTECTED INFORMATION" MEANS ANY ONE OR MORE OF THE
FOLLOWING: ANY INTERNAL VALUATION RECORDS, PERSONNEL RECORDS, ALL INTERNAL
COMMUNICATIONS, INCLUDING PROJECTIONS AND INTERNAL MEMORANDA OR MATERIALS,
BUDGETS, REPORTS, STRATEGIC PLANS, INTERNAL ANALYSES, COMPUTER SOFTWARE,
SUBMISSIONS RELATING TO OBTAINING INTERNAL APPROVALS, INFORMATION THAT IS
CONSIDERED PRIVILEGED, CONFIDENTIAL OR PROPRIETARY BY SELLER AND INFORMATION
PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE OR WORK PRODUCT DOCTRINE.
SECTION 3.6.
NO REPRESENTATIONS REGARDING DUE DILIGENCE MATERIALS.
EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE VIII, BY MAKING AVAILABLE TO BUYER, OR
FURNISHING BUYER WITH THE DUE DILIGENCE MATERIALS, SELLERS DO NOT MAKE ANY
WARRANTY OR REPRESENTATION WITH RESPECT TO THE ACCURACY, COMPLETENESS,
CONCLUSIONS OR STATEMENTS EXPRESSED IN THE DUE DILIGENCE MATERIALS.
SELLERS
SHALL MAKE AVAILABLE TO BUYER, OR FURNISH BUYER WITH, ANY MATERIAL UPDATES OF
THE DUE DILIGENCE MATERIALS UPON RECEIPT BY SELLERS, BUT FAILURE TO DELIVER OR
MAKE AVAILABLE THE SAME SHALL NOT IN AND OF ITSELF CONSTITUTE A DEFAULT
HEREUNDER, OR OTHERWISE CONSTITUTE A FAILURE OF A CONDITION TO CLOSING UNLESS
AND TO THE EXTENT EXPRESSLY PROVIDED TO THE CONTRARY IN THIS AGREEMENT.
BUYER
HEREBY WAIVES ANY AND ALL CLAIMS AGAINST SELLERS OR ANY PARTY THAT PREPARED OR
FURNISHED THE DUE DILIGENCE MATERIALS ARISING OUT OF ANY INACCURACY,
INCOMPLETENESS, CONCLUSIONS OR STATEMENTS EXPRESSED IN THE DUE DILIGENCE
MATERIALS FURNISHED OR MADE AVAILABLE BY SELLERS OR ANY OTHER PARTY (PROVIDED
THE FOREGOING SHALL NOT LIMIT CLAIMS BUYER MAY HAVE AGAINST SELLERS FOR
MISREPRESENTATIONS OR BREACHES OF WARRANTIES EXPRESSLY SET FORTH IN ARTICLE VIII
OF THIS AGREEMENT).
SECTION 3.7.
ACCESS TO THE PROPERTY.
(A)
PROVIDED BUYER HAS DELIVERED EVIDENCE OF BUYER'S LIABILITY INSURANCE (AS
HEREINAFTER DEFINED) TO SELLERS AND SELLERS HAVE APPROVED THE SAME (WHICH
APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED), SELLERS
WILL ALLOW BUYER AND ITS EMPLOYEES, AGENTS, PROSPECTIVE LENDERS, ATTORNEYS,
CONTRACTORS AND REPRESENTATIVES (COLLECTIVELY, "BUYER REPRESENTATIVES"), PRIOR
TO THE CLOSING DATE AT REASONABLE TIMES DURING NORMAL BUSINESS HOURS UPON TWO
(2) BUSINESS DAYS' PRIOR NOTICE (BUT SUBJECT TO THE RIGHTS OF TENANTS UNDER
THEIR LEASES), TO ENTER UPON THE PROPERTIES (I) FOR THE PURPOSE OF