ACTIONS AGAINST THE PROPERTY, WHICH, IF
ADVERSELY DETERMINED, WOULD:
(A) RESTRAIN THE CONSUMMATION OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT, (B) HAVE A MATERIAL ADVERSE EFFECT ON THE
PROPERTY AFTER CLOSING, OR (C) RESULT IN ANY LIEN OR ENCUMBRANCE AGAINST THE
PROPERTY.
(VI)
FOREIGN PERSON.
SELLER IS NOT A "FOREIGN PERSON" WITHIN THE
MEANING OF SECTION 1445(F)(3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
(C)
KNOWLEDGE.
WHENEVER USED IN THIS AGREEMENT, THE PHRASE "TO
SELLER'S ACTUAL KNOWLEDGE" AND SIMILAR PHRASES SHALL BE LIMITED IN MEANING TO
THE ACTUAL (AS DISTINGUISHED FROM IMPLIED, IMPUTED OR CONSTRUCTIVE) KNOWLEDGE OF
JOSEPH BOWAR (SENIOR VICE PRESIDENT) AND KEVIN BRANDS (ASSET MANAGER) WITHOUT
INDEPENDENT INQUIRY OR INVESTIGATION, AND WITHOUT IMPUTATION TO SUCH INDIVIDUAL
OR SELLER OF FACTS AND MATTERS OTHERWISE WITHIN THE PERSONAL KNOWLEDGE OF ANY
OTHER OFFICERS OR EMPLOYEES OF SELLER OR THIRD PARTIES.
(D)
CLOSING CONDITION.
PURCHASER'S OBLIGATION TO CLOSE THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT IS CONDITIONED UPON THE
REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN SECTION 10(B) BEING TRUE
AND CORRECT AS OF THE CLOSING DATE IN ALL MATERIAL RESPECTS, EXCEPT IT SHALL NOT
BE A FAILURE OF SUCH CONDITION IF (I) SUCH REPRESENTATION OR WARRANTY IS UNTRUE
OR INACCURATE AS THE RESULT OF (A) ANY ACTION BY SELLER WHICH IS PERMITTED UNDER
THE TERMS OF THIS AGREEMENT OR (B) ANY IMMATERIAL, MONETARY DEFAULT OR OTHER
NON-MONETARY DEFAULT BY A TENANT UNDER A LEASE OCCURRING AFTER THE EFFECTIVE
DATE OR (II) PURCHASER HAD KNOWLEDGE OF SUCH UNTRUTH OR INACCURACY ON OR PRIOR
TO THE TERMINATION DATE.
IF, PRIOR TO CLOSING, SELLER DISCLOSES TO PURCHASER,
OR PURCHASER DISCOVERS OR HAS KNOWLEDGE OF, ANY MISREPRESENTATION OF, OR
INACCURACY WITH RESPECT TO, ANY OF THE REPRESENTATIONS AND WARRANTIES OF SELLER
CONTAINED IN SECTION 10(B) AND SELLER IS UNABLE OR UNWILLING TO CURE SUCH
INACCURACY PRIOR TO CLOSING SUCH THAT THE CONDITION TO CLOSING SET FORTH IN THIS
SECTION 10(D) IS NOT SATISFIED AS OF THE CLOSING DATE, THEN PURCHASER SHALL HAVE
THE RIGHT TO TERMINATE THIS AGREEMENT BY DELIVERING WRITTEN NOTICE OF SUCH
TERMINATION TO SELLER BEFORE THE CLOSING.
IF PURCHASER DOES NOT DULY AND TIMELY
TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 10(D), THEN PURCHASER SHALL BE
DEEMED TO HAVE WAIVED ITS RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO THIS
SECTION 10(D) AND (X) SUCH REPRESENTATIONS AND WARRANTIES SHALL BE DEEMED TO
HAVE BEEN MODIFIED TO EXCEPT THEREFROM SUCH INFORMATION DISCLOSED BY SELLER,
DISCOVERED BY PURCHASER, OR OF WHICH PURCHASER HAS KNOWLEDGE AND (Y) PURCHASER
SHALL BE DEEMED TO HAVE WAIVED ALL CLAIMS FOR BREACH OF SUCH REPRESENTATIONS AND
WARRANTIES WITH RESPECT TO SUCH INFORMATION.
8
11.
NEW LEASES, COMMISSION AGREEMENTS AND SERVICE CONTRACTS.
(A)
NEW LEASES AND COMMISSION AGREEMENTS.
(I)
PRE-TERMINATION DATE.
PRIOR TO AND ON THE TERMINATION DATE,
SELLER SHALL HAVE THE RIGHT TO ENTER INTO ANY NEW LEASES FOR OCCUPANCY WITHIN
THE REAL PROPERTY, OR ANY EXTENSIONS, EXPANSIONS, TERMINATIONS OR OTHER
MODIFICATIONS OF THE TERMS OF ANY OF THE EXISTING LEASES (INDIVIDUALLY, A "NEW
LEASE", AND COLLECTIVELY,