Common use of Initial Due Diligence Review Clause in Contracts

Initial Due Diligence Review. In addition to the inspection rights contained elsewhere in this Article V, the Parties acknowledge and agree that from the Effective Date until Closing or the earlier termination of this Agreement, Purchaser shall have an opportunity to perform a due diligence review of the Property by virtue of its review of the following documents and other information pertaining to the Property (the matters described in subparagraphs (a) through (s) below, collectively, the “Property Information”) provided by Seller: (a) Unaudited income statements for the Asset for calendar years 2000 through 2006, and year-to-date unaudited income statements for the Asset through January 2007, and, if available, audited financial statements for calendar years 2000 through 2006; (b) Copies of current-year operating forecasts for the Asset; (c) Copies of the current (dated after December 15, 2006) title commitment issued to Seller for the Property (the “Title Commitment”) issued by the Title Company, together with copies of instruments or documents (the “Exception Documents”) creating or evidencing conditions or exceptions to title affecting the Asset and a copy of Seller’s existing title policy together with all endorsements thereto; (d) Copies of the current survey plat for the Asset (the “Existing Survey”); (e) Copies of the Declaration for the Asset (the “Houston Declaration”); (f) Copies of any environmental reports regarding the Asset in the possession of Seller (collectively, the “Environmental Reports”); (g) Copies of any property condition reports (including geotechnical, geophysical and engineering reports) regarding the Asset in the possession of Seller; (h) Copies of the most recent real estate and personal property tax statements in Seller’s possession with respect to the Property or any part thereof; (i) Copies of the Management Agreement and the Material Agreements;

Initial Due Diligence Review. In addition to the inspection rights contained elsewhere in this Article V, the Parties acknowledge and agree that from the Effective Date until Closing or the earlier termination of this Agreement, Purchaser shall have an opportunity to perform a due diligence review of the Property by virtue of its review of the following documents and other information pertaining to the Property (the matters described in subparagraphs (a) through (s) below, collectively, the “Property Information”) provided by Sellerthe Sellers: (a) Unaudited income statements for the Asset for calendar years 2000 through 2006, and year-to-date unaudited income statements for the Asset through January 2007, and, if available, audited financial statements for calendar years 2000 through 2006; (b) Copies of current-year operating forecasts for the Asset; (c) Copies of the current (dated after December 15, 2006) title commitment issued to Seller the Sellers for the Property (the “Title Commitment”) issued by the Title Company, together with copies of instruments or documents (the “Exception Documents”) creating or evidencing conditions or exceptions to title affecting the Asset and a copy of Seller’s the Sellers’ existing title policy together with all endorsements thereto; (d) Copies of the current existing survey plat for pertaining to the Asset (the “Existing Survey”); (e) Copies of the Declaration for the Asset (the “Houston Declaration”)Intentionally Omitted; (f) Copies of any environmental reports regarding the Asset in the possession of Seller the Sellers (collectively, the “Environmental Reports”); (g) Copies of any property condition reports (including geotechnical, geophysical and engineering reports) regarding the Asset in the possession of Sellerthe Sellers; (h) Copies of the most recent real estate and personal property tax statements in Seller’s the Sellers’ possession with respect to the Property or any part thereof; (i) Copies of the Management Agreement and the Material Agreements; (j) Intentionally Omitted; (k) Intentionally Omitted; (l) Copies of all Operating Agreements (and all amendments, modifications, or supplements thereto) pertaining to the Asset, to the extent in the Sellers’ possession; (m) Copies of all Permits pertaining to the Asset, to the extent in the Sellers’ possession; (n) A schedule setting forth in reasonable detail (as of the date specified in such schedule) all Bookings, House Cash and FF&E Reserves; (o) A schedule prepared by the Manager setting forth in reasonable detail the capital expenditures projected at the Property for the next five (5) years; (p) Intentionally Omitted; (q) Copies of all architectural drawings and plans and specifications with respect to the Improvements, all to the extent in the Sellers’ possession; (r) Copies of all certificates of occupancy pertaining to the Asset, to the extent in the Sellers’ possession; and (s) A schedule of pending real estate tax protests or proceedings affecting the Asset. Purchaser acknowledges that the Property Information either has been made available by the Sellers to Purchaser prior to the Effective Date or will be made available to Purchaser within five (5) days after the Effective Date (or, with respect to insurance policies, as soon as they become available), in each case by means of posting the same on the “CrescentConnect” website to which Purchaser was granted access by the Sellers. In addition to the foregoing, as soon as reasonably possible after the Effective Date, the Sellers shall provide to Purchaser year-to-date unaudited monthly income statements for the Asset, beginning January 2007, as the same become available, and the Sellers shall provide to Purchaser promptly upon request by Purchaser such additional due diligence materials relating to the Property which are reasonably requested by Purchaser and are in the Sellers’ possession or control, including audited financial statements for the Asset, if available. All such additional due diligence documents and materials provided by the Sellers to Purchaser after the Effective Date shall be provided by means of posting the same on the “CrescentConnect” website and shall be referred to collectively as the “Additional Property Materials.” Except as and to the extent otherwise expressly provided in the Sellers’ representations and warranties in Article VI of this Agreement, the Sellers expressly disclaim any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in the Property Information and/or the Additional Property Materials, or for omissions from the Property Information and/or the Additional Property Materials, or in any other written or oral communications transmitted or made available to Purchaser. Except as otherwise expressly provided in the Sellers’ representations and warranties in Article VI of this Agreement, Purchaser acknowledges and agrees that the Sellers have not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Information and/or the Additional Property Materials, and have provided the Property Information and the Additional Property Materials solely as an accommodation to Purchaser. With respect to the Property, Purchaser shall rely solely upon (A) Purchaser’s review of the Property Information and the Additional Property Materials, (B) Purchaser’s inspections of the Property pursuant to Section 5.3(a) below, (C) the express warranties and representations of the Sellers set forth in Article VI of this Agreement, and (D) the express covenants of the Sellers set forth in Article XIII of this Agreement. In permitting Purchaser to review the Property Information, the Additional Property Materials or any other information, the Sellers have not waived any privilege or claim of confidentiality with respect thereto, and no third-party benefits or relationships of any kind, either express or implied, have been offered, intended or created. The provisions of this Section 5.1 shall survive the termination of this Agreement and Closing.

Initial Due Diligence Review. In addition to the inspection rights contained elsewhere in this Article V, the Parties acknowledge and agree that from the Effective Date until Closing or the earlier termination of this Agreement, Purchaser shall have an opportunity to perform a due diligence review of the Property by virtue of its review of the following documents and other information pertaining to the Property (the matters described in subparagraphs (a) through (s) below, collectively, the “Property Information”) provided by Seller: (a) Unaudited income statements for the Asset for calendar years 2000 through 2006, and year-to-date unaudited income statements for the Asset through January 2007, and, if available, audited financial statements for calendar years 2000 through 2006; (b) Copies of current-year operating forecasts for the Asset; (c) Copies of the current (dated after December 15, 2006) title commitment issued to Seller for the Property (the “Title Commitment”) issued by the Title Company, together with copies of instruments or documents (the “Exception Documents”) creating or evidencing conditions or exceptions to title affecting the Asset and a copy of Seller’s existing title policy together with all endorsements thereto; (d) Copies of the current existing survey plat for pertaining to the Asset (the “Existing Survey”);): (e) Copies of the Declaration for the Asset (the “Houston Declaration”)Intentionally Omitted; (f) Copies of (i) any environmental reports regarding the Asset in the possession of Seller Seller; and (ii) with respect to the matters disclosed in Schedule 6.25 regarding the Asset, the following items, to the extent that the same pertain respectively to each such matter: any hard copies of correspondence among Seller, its Affiliates, its consultants and the applicable Governmental Body, and any environmental studies, proposals, contracts and other pertinent written materials in the possession of Seller, but in each case excluding materials that are protected by attorney-client or attorney work-product privileges and excluding all email and other electronic correspondence (collectively, the “Environmental Reports”);): (g) Copies of any property condition reports (including geotechnical, geophysical and engineering reports) regarding the Asset in the possession of Seller; (h) Copies of the most recent real estate and personal property tax statements in Seller’s possession with respect to the Property or any part thereof; (i) Copies of the Management Agreement and the Material Agreements;

Initial Due Diligence Review. In addition to the inspection rights contained elsewhere in this Article V, the Parties acknowledge and agree that from the Effective Date until Closing or the earlier termination of this Agreement, Purchaser shall have an opportunity to perform a due diligence review of the Property by virtue of its review of the following documents and other information pertaining to the Property (the matters described in subparagraphs (a) through (s) below, collectively, the “Property Information”) provided by Sellerthe Sellers: (a) Unaudited income statements for the Asset Assets for calendar years 2000 through 2006, and year-to-date unaudited income statements for the Asset Assets through January 2007, and, if available, audited financial statements for calendar years 2000 through 2006; (b) Copies of current-year operating forecasts for the each Asset; (c) Copies of the current (dated after December 15, 2006) title commitment commitments issued to Seller the respective Sellers for the Property (collectively, the “Title Commitments” and singularly, a “Title Commitment”) issued by the Title Company, together with copies of instruments or documents (the “Exception Documents”) creating or evidencing conditions or exceptions to title affecting the Asset that is the subject of such Title Commitment and a copy of each of the respective Seller’s existing title policy together with all endorsements thereto; (d) Copies of the current survey plat condominium plats for the Asset Park Hyatt Beaver Creek and the Denver Marriott and the existing survey pertaining to the Ventana Inn & Spa and the Omni Austin (collectively, the “Existing Surveys” and singularly, an “Existing Survey”); (e) Copies of the Declaration for the Asset (the “Houston Declaration”)Intentionally Omitted; (f) Copies of (i) any environmental reports regarding the each Asset in the possession of Seller the respective Sellers; and (ii) with respect to the matters disclosed in Schedule 6.25 regarding the Ventana Inn & Spa, the following items: any hard copies of correspondence among the applicable Seller, its Affiliates, its consultants and the applicable Governmental Body, and any environmental studies, proposals, contracts and other pertinent written materials in the possession of the applicable Seller, but in each case excluding materials that are protected by attorney-client or attorney work-product privileges and excluding all email and other electronic correspondence (collectively, the “Environmental Reports”); (g) Copies of any property condition reports (including geotechnical, geophysical and engineering reports) regarding the each Asset in the possession of Sellerthe respective Sellers; (h) Copies of the most recent real estate and personal property tax statements in Seller’s the respective Sellers’ possession with respect to the Property or any part thereof; (i) Copies of (i) all Management Agreements, (ii) the Management Agreement and Omni Lease, (iii) the Ground Leases, (iv) the Material Agreements, and (v) the East West Agreements; (j) Intentionally Omitted; (k) A current rent roll for each Property and copies of the Tenant Leases (and all amendments, modifications, or supplements thereto) pertaining to each Asset, to the extent in the respective Sellers’ possession; (l) Copies of all Operating Agreements (and all amendments, modifications, or supplements thereto) pertaining to each Asset, to the extent in the respective Sellers’ possession; (m) Copies of all Permits pertaining to each Asset, to the extent in the respective Sellers’ possession; (n) A schedule setting forth in reasonable detail (as of the date specified in such schedule) all Bookings, House Cash and FF&E Reserves; (o) A schedule prepared by the applicable Manager setting forth in reasonable detail the capital expenditures projected at each Property for the next five (5) years; (p) All correspondence and communications between the landlord and tenant with respect to the Omni Lease in the possession of the applicable Seller, excluding materials that are protected by attorney-client or attorney work-product privileges; (q) Copies of all architectural drawings and plans and specifications with respect to the Improvements, all to the extent in the respective Sellers’ possession; (r) Copies of all certificates of occupancy pertaining to each Asset, to the extent in the respective Sellers’ possession; and (s) A schedule of pending real estate tax protests or proceedings affecting any of the Assets. Purchaser acknowledges that the Property Information either has been made available by the Sellers to Purchaser prior to the Effective Date or will be made available to Purchaser within five (5) days after the Effective Date (or, with respect to insurance policies, as soon as they become available), in each case by means of posting the same on the “CrescentConnect” website to which Purchaser was granted access by the Sellers. In addition to the foregoing, as soon as reasonably possible after the Effective Date, the Sellers shall provide to Purchaser year-to-date unaudited monthly income statements for the Assets, beginning January 2007, as the same become available, and the Sellers shall provide to Purchaser promptly upon request by Purchaser such additional due diligence materials relating to the Property which are reasonably requested by Purchaser and are in the respective Sellers’ possession or control, including audited financial statements for each of the Assets, if available. All such additional due diligence documents and materials provided by the Sellers to Purchaser after the Effective Date shall be provided by means of posting the same on the “CrescentConnect” website and shall be referred to collectively as the “Additional Property Materials.” Except as and to the extent otherwise expressly provided in the Sellers’ representations and warranties in Article VI of this Agreement (as supplemented by Schedule 14.14 attached hereto), the Sellers expressly disclaim any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in the Property Information and/or the Additional Property Materials, or for omissions from the Property Information and/or the Additional Property Materials, or in any other written or oral communications transmitted or made available to Purchaser. Except as otherwise expressly provided in the Sellers’ representations and warranties in Article VI of this Agreement (as supplemented by Schedule 14.14 attached hereto), Purchaser acknowledges and agrees that the Sellers have not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Information and/or the Additional Property Materials, and have provided the Property Information and the Additional Property Materials solely as an accommodation to Purchaser. With respect to the Property, Purchaser shall rely solely upon (A) Purchaser’s review of the Property Information and the Additional Property Materials, (B) Purchaser’s inspections of the Property pursuant to Section 5.3(a) below, (C) the express warranties and representations of the Sellers set forth in Article VI of this Agreement (as supplemented by Schedule 14.14 attached hereto), and (D) the express covenants of the Sellers set forth in Article XIII of this Agreement (as supplemented by Schedule 14.14 attached hereto). In permitting Purchaser to review the Property Information, the Additional Property Materials or any other information, the Sellers have not waived any privilege or claim of confidentiality with respect thereto, and no third-party benefits or relationships of any kind, either express or implied, have been offered, intended or created. The provisions of this Section 5.1 shall survive the termination of this Agreement and Closing.