AGREEMENT FOR A PERIOD OF ONE (1) YEAR (IT BEING UNDERSTOOD THAT IN THE
EVENT OF AN ALLEGED FAILURE TO PERFORM A COVENANT OR OBLIGATION OR AN ALLEGED
BREACH OF A REPRESENTATION OR WARRANTY UNDER ANY OF SAID SECTIONS, SO LONG AS
PURCHASER OR SELLER, AS THE CASE MAY BE, HAS FILED A LAWSUIT RELATING TO SUCH
BREACH OF ANY SUCH REPRESENTATION OR WARRANTY WITHIN SAID ONE (1) YEAR PERIOD,
SUCH CLAIM SHALL SURVIVE SAID ONE (1) YEAR PERIOD UNTIL SUCH LAWSUIT IS
RESOLVED).
(E)
LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
SET FORTH HEREIN, IN NO EVENT SHALL SELLER'S LIABILITY WITH RESPECT TO A FAILURE
TO PERFORM ANY OF SELLER'S COVENANTS OR OBLIGATIONS HEREUNDER OR IN ANY
DOCUMENTS EXECUTED AND DELIVERED BY SELLER AT THE CLOSING OR A BREACH OF ANY OF
SELLER'S REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT OR IN ANY
DOCUMENTS EXECUTED AND DELIVERED BY SELLER AT THE CLOSING EXCEED ONE PERCENT
(1%) OF THE ALLOCATED PURCHASE PRICE WITH RESPECT TO EACH PROJECT.
16.
BROKERS.
SELLER SHALL PAY ALL BROKERAGE COMMISSIONS AND EXPENSES
OWED TO CB RICHARD ELLIS. ("SELLER'S BROKER"), IN CONNECTION WITH THE SALE OF
THE PROPERTY.
SELLER AND PURCHASER EACH REPRESENT TO THE OTHER THAT IT HAS NOT
ENGAGED OR DEALT WITH ANY BROKER OR FINDER (OTHER THAN SELLER'S BROKER) IN
CONNECTION WITH THE SALE OF THE PROPERTY. SELLER AND PURCHASER SHALL INDEMNIFY,
HOLD HARMLESS AND DEFEND THE OTHER, ITS AFFILIATES, AND ITS AND THEIR OFFICERS,
DIRECTORS, AFFILIATES, AGENTS AND EMPLOYEES, AGAINST AND FROM ALL CLAIMS,
DEMANDS, CAUSES OF
19
ACTION, JUDGMENTS, AND LIABILITIES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES AND COSTS) WHICH ARISE FROM A BREACH OF SUCH PARTIES' RESPECTIVE
REPRESENTATIONS SET FORTH IN THIS SECTION 16.
17.
CASUALTY AND CONDEMNATION.
(A)
MATERIAL.
IF, PRIOR TO CLOSING, (I) ANY OF THE IMPROVEMENTS ARE
DAMAGED OR DESTROYED, (A "CASUALTY"), AND THE COST OF REPAIR OR REPLACEMENT OF
THE IMPROVEMENTS IS REASONABLY LIKELY TO EQUAL OR EXCEED ONE PERCENT (1%) OF THE
ALLOCATED PURCHASE PRICE OF THE AFFECTED PROJECT (A "MATERIAL CASUALTY"), OR
(II) A CONDEMNATION PROCEEDING IS COMMENCED OR THREATENED IN WRITING AGAINST THE
REAL PROPERTY (A "CONDEMNATION"), THEN PURCHASER SHALL HAVE THE RIGHT TO
TERMINATE THIS AGREEMENT BY DELIVERING WRITTEN NOTICE THEREOF ON OR BEFORE THE
CLOSING DATE, IN WHICH EVENT THE EARNEST MONEY DEPOSIT (TOGETHER WITH INTEREST
THEREON) SHALL BE PAID TO PURCHASER.
IF PURCHASER FAILS TO TERMINATE THIS
AGREEMENT PURSUANT TO THIS SUBSECTION (A), THEN AT THE CLOSING, SELLER SHALL PAY
TO PURCHASER ALL INSURANCE PROCEEDS AND CONDEMNATION AWARDS PAID TO SELLER IN
CONNECTION WITH SUCH MATERIAL CASUALTY OR CONDEMNATION WHICH HAVE NOT BEEN USED
TO RESTORE THE REAL PROPERTY, AND SELLER SHALL ASSIGN TO PURCHASER ALL OF
SELLER'S RIGHT, TITLE AND INTEREST IN ANY INSURANCE PROCEEDS OR CONDEMNATION
AWARDS TO BE PAID TO SELLER IN CONNECTION WITH THE MATERIAL CASUALTY OR
CONDEMNATION.
IF SELLER ASSIGNS A CASUALTY CLAIM TO PURCHASER, THE PURCHASE
PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DEDUCTIBLE AMOUNT UNDER
SELLER'S INSURANCE