ACKNOWLEDGES AND AGREES THAT HAVING
BEEN GIVEN THE OPPORTUNITY TO OCCUPY AND INSPECT THE LESSEE OPTION PROPERTY AND
REVIEW INFORMATION AND DOCUMENTATION AFFECTING IT, LESSEE IS RELYING SOLELY ON
ITS OWN INVESTIGATION OF THE LESSEE OPTION PROPERTY AND REVIEW OF SUCH
INFORMATION AND DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY LESSOR. LESSEE FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
MADE AVAILABLE TO LESSEE OR PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF LESSOR
WITH RESPECT TO THE LESSEE OPTION PROPERTY WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT LESSOR HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY
OR COMPLETENESS OF SUCH INFORMATION. LESSOR IS NOT LIABLE OR BOUND IN ANY MANNER
BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE LESSEE OPTION PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL
ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. LESSEE FURTHER
ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF
THE LESSEE OPTION PROPERTY AND AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS"
CONDITION AND BASIS WITH ALL FAULTS, AND THAT LESSOR HAS NO OBLIGATIONS TO MAKE
REPAIRS, REPLACEMENTS OR IMPROVEMENTS EXCEPT AS MAY OTHERWISE BE EXPRESSLY
STATED HEREIN. LESSEE REPRESENTS, WARRANTS AND COVENANTS TO LESSOR THAT, EXCEPT
FOR LESSOR'S EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT
AND IN THE INSTRUMENTS TO BE DELIVERED AT CLOSING, LESSEE IS RELYING SOLELY UPON
LESSEE'S OWN INVESTIGATIONS.
38.9 Default; Remedies.
In the event that either party hereunder fails to
perform their respective duties or obligations under this Article, the other
party shall give Notice thereof and, if the non-performing Party fails to remedy
such default within a ten (10) day period, the performing party's remedies shall
be as follows: (i) Lessor's sole and exclusive remedy shall be to retain the
Lessee Option Deposit as full liquidated damages, and not as a penalty, the
parties hereby acknowledging Lessor's actual damages will be difficult, if not
impossible, to calculate under the circumstances, and Lessor hereby waiving and
releasing any right to pursue any other remedy hereunder, at law, in equity or
otherwise, including without limitation the remedies of specific performance and
damages, and (ii) Lessee's sole and exclusive remedies shall be (a) receive a
return of the Lessee Option Deposit or (b) to pursue an action for specific
performance and to recover its reasonable costs and expenses in pursuing such
remedy, and Lessee hereby waiving and releasing any right to pursue any other
remedy hereunder, at law, in equity or otherwise, including without limitation
the remedy of damages.
In no event will any default hereunder result in the
termination of the Lease.
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38.10 Assignments.
Lessee shall have no right to assign the Lessee Option, or
any interest therein, without Lessor's consent, which may be withheld in
Lessor's sole discretion; provided, however, that Lessee may assign the Lessee
Option at the Lessee Closing to