HEREOF, OR (II) IF THE OWNER OR HOLDER OF THE WELLS FARGO LOAN DOES
NOT CONSENT TO THE SALE OF THE PURCHASED ASSETS PURSUANT TO THIS AGREEMENT, BY
THE RECEIVER TO THE PURCHASER, THEN THE PURCHASER SHALL BE ENTITLED TO THE
BREAK-UP FEE DESCRIBED IN SECTION 11.3 BELOW, FROM THE RECEIVER.
12
(E)
RETURN OF INFORMATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, IF THIS AGREEMENT IS TERMINATED, EACH PARTY WILL RETURN ALL DOCUMENTS,
WORKPAPERS AND OTHER MATERIAL OF ANY OTHER PARTY RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, WHETHER SO OBTAINED BEFORE OR AFTER THE
EXECUTION OF THIS AGREEMENT, TO THE PARTY FURNISHING THE SAME, AND ALL
CONFIDENTIAL INFORMATION RECEIVED BY ANY PARTY TO THIS AGREEMENT WITH RESPECT TO
THE BUSINESS OF ANY OTHER PARTY WILL BE TREATED IN ACCORDANCE WITH THE
CONFIDENTIALITY AGREEMENT BETWEEN THE PARTIES.
(F)
LIMITED LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, THE RECEIVER SHALL IN NO EVENT BE LIABLE FOR DAMAGES OR FOR OTHER
MONETARY RELIEF UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE ACTUAL OR ALLEGED
BREACH HEREOF, EXCEPT AS SET FORTH IN THIS AGREEMENT.
11.
COURT APPROVAL.
11.1
SUBJECT TO OTHER OFFERS; COURT APPROVAL.
NOTWITHSTANDING ANYTHING
EXPRESSED OR IMPLIED HEREIN TO THE CONTRARY, THE PARTIES ACKNOWLEDGE, UNDERSTAND
AND AGREE THAT (A) THIS AGREEMENT SHALL BE SUBJECT TO HIGHER AND BETTER OFFERS
TO BE SOLICITED AT AN AUCTION, WHICH SHALL TAKE PLACE ON OR BEFORE APRIL 10,
2013 (THE "AUCTION") HELD IN ACCORDANCE WITH BIDDING PROCEDURES ESTABLISHED BY
THE RECEIVER DESCRIBED IN EXHIBIT B ATTACHED HERETO (THE "BIDDING PROCEDURES"),
(B) ALL OBLIGATIONS OF THE RECEIVER UNDER THIS AGREEMENT ARE SUBJECT TO ANY
HIGHER AND BETTER OFFERS THAT MAY BE MADE AT THE AUCTION, AS DETERMINED BY THE
RECEIVER IN HIS SOLE DISCRETION, AND (C) THE RECEIVER'S OBLIGATIONS UNDER THIS
AGREEMENT ARE CONTINGENT UPON THE COURT'S APPROVAL AND SUCH REQUIREMENTS AS MAY
BE DETERMINED BY THE COURT.
11.2
ENTRY OF ORDERS.
EACH OF THE PURCHASER AND THE RECEIVER (EACH AT
ITS OWN EXPENSE) SHALL USE ITS REASONABLE EFFORTS TO OBTAIN ENTRY OF THE SALE
ORDER, AND SHALL EXECUTE SUCH AFFIDAVITS, APPEAR AND TESTIFY IN THE COURT, AND
TAKE SUCH OTHER ACTIONS AS MAY REASONABLY BE REQUIRED TO OBTAIN ENTRY OF SUCH
ORDER.
11.3
STALKING HORSE BIDDER FEES.
IN CONNECTION WITH THE AUCTION, THE
PURCHASER HAS AGREED TO ACT AS THE "STALKING HORSE BIDDER."
IF THE PURCHASER
FAILS TO BE THE HIGHEST AND BEST OFFER AT THE AUCTION AND THE SALE OF THE
PURCHASED ASSETS IS CONSUMMATED WITH A QUALIFIED BIDDER, THE PURCHASER SHALL
RECEIVE A FEE OF $75,000 ("BREAK-UP FEE"), WHICH SHALL BE PAID BY THE RECEIVER
FROM THE RECEIVERSHIP ESTATE, IN ACCORDANCE WITH SECTION 10.5(D) HEREIN, WITHIN
TEN (10) BUSINESS DAYS AFTER THE RECEIVER CLOSES A SALE OF THE PURCHASED ASSETS
TO A QUALIFIED BIDDER.
11.4
NOTICE OF COURT APPROVAL.
THE RECEIVER MUST PROVIDE WRITTEN NOTICE
OF THE HEARING TO APPROVE THE SALE OF ASSETS, WHETHER TO PURCHASER OR ANOTHER
QUALIFIED BIDDER, TO ALL KNOWN HOLDERS OF CLAIMS AGAINST CLEAIRE, WHETHER