otherwise fails to perform any of its obligations as and when required
hereunder, Purchaser's sole and exclusive remedies prior to Closing shall be
either to (a) waive said failure or breach and proceed to Closing, (b) enforce
specific performance of Seller's obligations under this Agreement, including
Seller's obligation to sell the Property to Purchaser (and Purchaser shall be
entitled to offset Purchaser's attorneys' fees and out-of-pocket costs against
the Purchase Price in connection with such action), or (c) terminate this
Agreement and obtain a refund of the Deposit, and Purchaser shall be entitled,
as its sole remedy, to recover its actual third party out-of-pocket costs
(including attorneys' fees) incurred in connection with the transactions
contemplated hereunder, not to exceed $150,000.00. Purchaser shall be deemed to
have elected the immediately preceding option (c) if Purchaser fails to file
suit for specific performance against Seller in a court having jurisdiction in
the county and state in which the Property is located, on or before thirty (30)
days following the date upon which the Closing Date was to have occurred. Except
for, and in consideration of, the foregoing pre-Closing remedies of Purchaser,
Purchaser hereby waives any other remedies available at law or in equity,
specifically excluding, if the Closing does occur, those indemnities set forth
in this Agreement that expressly survive Closing.
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ARTICLE XI
RELEASE/Indemnification
11.1
"AS-IS" CONVEYANCE. PURCHASER ACKNOWLEDGES THAT THIS AGREEMENT
CONTEMPLATES THAT IT HAS, OR BY THE END OF THE FEASIBILITY PERIOD, WILL HAVE,
BEEN GIVEN THE OPPORTUNITY TO STUDY AND INVESTIGATE THE PROPERTY. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS,
PURCHASER ACKNOWLEDGES THAT IT IS PURCHASING THE PROPERTY IN ITS EXISTING
CONDITION, "AS IS, WHERE IS AND WITH ALL FAULTS", AS OF THE CLOSING DATE,
INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ALL FACTS, CIRCUMSTANCES, TITLE,
ZONING AND LAND USE RESTRICTIONS, AND OTHER PROPERTY CONDITIONS.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING
DOCUMENTS, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE
WHATSOEVER PERTAINING TO THE CONDITION OF THE PROPERTY (INCLUDING WARRANTIES OF
MERCHANTABILITY OR HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES) OR TITLE TO
THE PROPERTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTIES WITH RESPECT TO ZONING, TITLE, LAND VALUE, AVAILABILITY OF ACCESS OR
UTILITIES, COMPLIANCE WITH ANY LOCAL, STATE OR FEDERAL REQUIREMENTS, PRESENCE OF
HAZARDOUS MATERIALS, RIGHTS OF INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, RIGHTS
OF THIRD PARTIES RELATING TO THE CONDITION OF THE PROPERTY, FUTURE RESTRICTIONS
UPON USE OR SALE, THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND
USES WHICH PURCHASER MAY CONDUCT THEREON (INCLUDING ANY DEVELOPMENT OF THE LAND
OR IMPROVEMENTS), THE QUALITY AND STATE OF REPAIR (OR LACK OF REPAIR) OF THE
LAND AND IMPROVEMENTS, THE VALUE OF AND INCOME TO BE DERIVED FROM THE PROPERTY,
DEFICIENCY OF ANY UNDER SHORING OR DRAINAGE, OR THE SOIL OR WATER CONDITIONS OF
THE PROPERTY.
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EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY OF THE