THE SALE IS NOT COMPLETED AS HEREIN PROVIDED
SOLELY BY REASON OF ANY MATERIAL DEFAULT OF SELLER, BUYER SHALL BE ENTITLED TO
(I) TERMINATE THIS AGREEMENT (BY DELIVERING NOTICE TO SELLER WHICH INCLUDES A
WAIVER OF ANY RIGHT, TITLE OR INTEREST OF BUYER IN THE PROPERTY) AND OBTAIN THE
RETURN OF THE DEPOSIT AND, IN THE EVENT
16
SUCH DEFAULT BY SELLER WAS WILLFUL AND IN BAD FAITH OR BASED ON FRAUD OR IN THE
EVENT THAT SPECIFIC PERFORMANCE IS OTHERWISE NOT AVAILABLE, HAVE SELLER
REIMBURSE BUYER UP TO $75,000 IN THE AGGREGATE OF BUYER'S DOCUMENTED,
THIRD-PARTY DUE DILIGENCE COSTS OR (II) TREAT THIS AGREEMENT AS BEING IN FULL
FORCE AND EFFECT AND PURSUE ONLY THE SPECIFIC PERFORMANCE OF THIS AGREEMENT.
BUYER WAIVES ANY RIGHT TO PURSUE ANY OTHER REMEDY AT LAW OR EQUITY FOR SUCH
DEFAULT OF SELLER, INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO SEEK, CLAIM OR
OBTAIN DAMAGES, PUNITIVE DAMAGES OR CONSEQUENTIAL DAMAGES.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1
SELLER'S WARRANTIES AND REPRESENTATIONS.
THE MATTERS SET FORTH IN
THIS SECTION 11.1 CONSTITUTE REPRESENTATIONS AND WARRANTIES BY SELLER WHICH ARE
NOW AND (SUBJECT TO MATTERS CONTAINED IN ANY NOTICE GIVEN PURSUANT TO THE NEXT
SUCCEEDING SENTENCE) SHALL, IN ALL MATERIAL RESPECTS, AT THE CLOSING BE TRUE AND
CORRECT.
IF SELLER LEARNS OF, OR HAS A REASON TO BELIEVE THAT ANY OF THE
FOLLOWING REPRESENTATIONS AND WARRANTIES MAY CEASE TO BE TRUE, SELLER SHALL GIVE
PROMPT NOTICE TO BUYER (WHICH NOTICE SHALL INCLUDE COPIES OF THE INSTRUMENT,
CORRESPONDENCE, OR DOCUMENT, IF ANY, UPON WHICH SELLER'S NOTICE IS BASED).
AS
USED IN THIS SECTION 11.1, THE PHRASE "TO THE EXTENT OF SELLER'S ACTUAL
KNOWLEDGE" SHALL MEAN THE ACTUAL KNOWLEDGE OF KIMBERLY ADAMS, THE ASSET MANAGER
RESPONSIBLE FOR THE PROPERTY.
THERE SHALL BE NO DUTY IMPOSED OR IMPLIED TO
INVESTIGATE, INSPECT, OR AUDIT ANY SUCH MATTERS, AND THERE SHALL BE NO PERSONAL
LIABILITY ON THE PART OF SUCH ASSET MANAGER.
TO THE EXTENT BUYER HAS OR
ACQUIRES ACTUAL KNOWLEDGE OR IS DEEMED TO KNOW PRIOR TO THE EXPIRATION OF THE
INVESTIGATION PERIOD THAT THESE REPRESENTATIONS AND WARRANTIES ARE INACCURATE,
UNTRUE OR INCORRECT IN ANY WAY, SUCH REPRESENTATIONS AND WARRANTIES SHALL BE
DEEMED MODIFIED TO REFLECT BUYER'S KNOWLEDGE OR DEEMED KNOWLEDGE.
BUYER SHALL
BE DEEMED TO KNOW A REPRESENTATION OR WARRANTY IS UNTRUE, INACCURATE OR
INCORRECT IF THIS AGREEMENT OR ANY FILES, DOCUMENTS, MATERIALS, ANALYSES,
STUDIES, TESTS, OR REPORTS DISCLOSED OR MADE AVAILABLE TO BUYER PRIOR TO THE
EXPIRATION OF THE INVESTIGATION PERIOD CONTAINS INFORMATION WHICH IS
INCONSISTENT WITH SUCH REPRESENTATION OR WARRANTY.
11.1.1
NO BROKER.
SELLER HAS NOT ENGAGED OR DEALT WITH ANY BROKER OR
FINDER IN CONNECTION WITH THE SALE CONTEMPLATED BY THIS AGREEMENT, EXCEPT JONES
LANG LASALLE AMERICAS, INC., A MARYLAND CORPORATION (THE "BROKER").
SELLER
SHALL PAY ALL BROKERAGE COMMISSIONS TO THE BROKER, AS THE BROKER MAY BE ENTITLED
THERETO PURSUANT TO THE TERMS OF A SEPARATE WRITTEN AGREEMENT.
SELLER SHALL
INDEMNIFY AND HOLD HARMLESS BUYER FROM ANY CLAIMS, COSTS, DAMAGES OR LIABILITIES
(INCLUDING ATTORNEYS' FEES) FOR THE PAYMENT