SECTION 3.5.
DELIVERIES BY SELLERS. PRIOR TO THE EFFECTIVE DATE, BUYER RECEIVED
AN OFFERING PACKAGE WITH RESPECT TO THE PROPERTIES (THE "OFFERING PACKAGE")
DISTRIBUTED BY A REPRESENTATIVE OF SELLERS. SELLERS THROUGH THEIR AGENTS, HAVE
ALSO MADE AVAILABLE TO BUYER AN ELECTRONIC WAR ROOM ("WAR ROOM") ON ITS WEBSITE
WHERE CERTAIN INFORMATION RELATING TO THE PROPERTY HAS BEEN POSTED. DATA IN THIS
WAR ROOM INCLUDES THE LEASES, AND CURRENT ENVIRONMENTAL REPORTS, PROPERTY
EVALUATION REPORTS LISTED ON EXHIBIT H, ARGUS
10
MODELED BUILDING-BY-BUILDING CASH FLOW PROJECTIONS, PRO FORMA DEVELOPMENT
BUDGETS, UPDATED TITLE REPORTS, AND UPDATED SURVEYS. THE DUE DILIGENCE MATERIALS
DELIVERED (OR MADE AVAILABLE) BY SELLER OR ITS AGENT, INCLUDING, WITHOUT
LIMITATION, THOSE DUE DILIGENCE MATERIALS 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