OBLIGATION SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT INDEFINITELY, IT BEING AGREED BETWEEN THE PARTIES THAT THE ACTUAL
DAMAGES TO PURCHASER IN THE EVENT OF SUCH DEFAULT ARE IMPRACTICAL IF NOT
IMPOSSIBLE TO DETERMINE AND THAT THE TWENTY MILLION DOLLARS ($20,000,000) IS A
REASONABLE ESTIMATE THEREOF.
IN THE EVENT OF SUCH TERMINATION, ALL RIGHTS,
OBLIGATIONS, AND LIABILITIES OF THE PARTIES HEREUNDER SHALL BE RELEASED AND
DISCHARGED EXCEPT FOR THOSE RIGHTS AND OBLIGATIONS WHICH, BY THEIR TERMS,
SURVIVE TERMINATION OF THIS AGREEMENT. PURCHASER EXPRESSLY WAIVES ITS RIGHT TO
SEEK ANY COMPENSATORY, PUNITIVE OR OTHER DAMAGES FOR SELLER'S DEFAULT
HEREUNDER.
SELLER WILL BE DEEMED TO HAVE FAILED TO SATISFY ITS OBLIGATIONS AND
CLOSING CONDITIONS HEREUNDER, AND PURCHASER SHALL HAVE THE RIGHT TO EXERCISE ITS
REMEDIES IN THIS SECTION 10.2, IN THE EVENT THAT SELLER HAS FAILED TO PAY ANY
LIQUIDATED AMOUNTS REQUIRED TO BE PAID BY SELLER HEREUNDER INCLUDING, WITHOUT
LIMITATION, ANY AMOUNTS THAT SELLER MUST PAY IN ORDER TO REMOVE ANY MANDATORY
REMOVAL OBJECTION.
10.3
LIMITATIONS.
FOR CERTAINTY, EACH OF PURCHASER
AND SELLER AGREES THAT SECTIONS 10.1 AND 10.2 SET FORTH THE ONLY REMEDIES
AVAILABLE FOR DEFAULT UNDER THIS AGREEMENT AND MORE PARTICULARLY THAT, EXCEPT AS
SET FORTH IN SECTION 10.1 OR 10.2, INCLUDING AS NECESSARY TO ENFORCE ITS RIGHT
TO COLLECT THE DEPOSIT AS SET FORTH ABOVE, NO PARTY SHALL OTHERWISE BE ENTITLED
TO BRING ANY CLAIM FOR DAMAGES OR SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT
LAW OR IN EQUITY AGAINST THE OTHER FOR A FAILURE TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY
BREACH OF SELLER'S REPRESENTATIONS AND WARRANTIES OR CLAIM FOR INDEMNITY
PURSUANT TO ARTICLE IX, WHICH CLAIMS ARE GOVERNED SEPARATELY BY THE LIMITATIONS
SET FORTH IN ARTICLE IX, OR TO ENFORCE ANY OBLIGATION OF ANY PARTY HEREUNDER
THAT, BY ITS TERMS, IS TO BE PERFORMED BY THAT PARTY AFTER THE CLOSING. EACH OF
PURCHASER, ON THE ONE HAND, AND EACH SELLER, ON THE OTHER HAND, CONFIRMS THAT IT
WAS REPRESENTED BY COUNSEL THAT EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE,
THE CONSEQUENCES OF THE PROVISIONS CONTAINED IN THIS ARTICLE X.
60
ARTICLE XI
MISCELLANEOUS
11.1
BROKER.
EACH OF SELLER AND PURCHASER
ACKNOWLEDGES THAT AEW CAPITAL MANAGEMENT, L.P. ("AEW") HAS ACTED AS SELLERS'
EXCLUSIVE BROKER WITH RESPECT TO THE TRANSACTION CONTEMPLATED HEREIN AND WITH
RESPECT TO THIS AGREEMENT, AND EACH SELLER AGREES THAT IT WILL PAY THE FEES AND
EXPENSES DUE TO AEW FOR THOSE SERVICES.
EACH OF SELLER AND PURCHASER REPRESENTS
AND WARRANTS TO THE OTHER THAT IT HAS NOT DEALT WITH ANY OTHER BROKER IN THIS
TRANSACTION AND EACH AGREES TO HOLD HARMLESS THE OTHER AND INDEMNIFY THE OTHER
FROM AND AGAINST ANY AND ALL ACTUAL LOSSES, COSTS, DAMAGES, LIABILITIES AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND
DISBURSEMENTS BUT EXCLUDING CONSEQUENTIAL AND OTHER INDIRECT DAMAGES) SUFFERED
BY THE OTHER AS A RESULT OF ANY BREACH OF ITS REPRESENTATION AND WARRANTY IN
THIS SECTION 11.1.
THE PROVISIONS OF THIS SECTION 11.1 SHALL SURVIVE THE