IF ACTUALLY TAKEN, IN PURCHASER'S REASONABLE DISCRETION, MATERIALLY AND
ADVERSELY AFFECT THE CONTEMPLATED USE AND DEVELOPMENT OF THE PROPERTY BY
PURCHASER, PROVIDED, HOWEVER, THAT IN NO EVENT SHALL ANY TAKING OR CONDEMNATION
QUALIFY AS "MATERIAL" FOR PURPOSES OF SAID CLAUSE (IV) IF THE TOTAL LAND AREA AT
ISSUE IS LESS THAN 5% OF THE TOTAL LAND AREA OF THE PROPERTY.
(H)
ENCROACHMENTS.
SELLER SHALL NOT, BETWEEN
THE DATE HEREOF AND CLOSING, TAKE ANY ACTION, OR CONSENT TO THE TAKING OF ANY
ACTION, THAT RESULTS IN THE CREATION OF ANY NEW PHYSICAL ENCROACHMENT OF ANY
IMPROVEMENTS ONTO ANY PROPERTY ADJACENT TO THE LAND.
28
21.
CONFIDENTIALITY.
(A)
PURCHASER ACKNOWLEDGES THAT, IN CONNECTION
WITH THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY, PURCHASER HAS
RECEIVED AND WILL RECEIVE CERTAIN MATERIAL INFORMATION RELATING TO SELLER AND
THE PROPERTY WHICH IS NON-PUBLIC, CONFIDENTIAL AND/OR PROPRIETARY IN NATURE
("EVALUATION MATERIAL").
IN CONSIDERATION THEREOF, PURCHASER AGREES THAT THE
EVALUATION MATERIAL WILL BE USED SOLELY FOR THE PURPOSE OF CONSUMMATING THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT, AND UNLESS AND UNTIL THE CLOSING
SHALL HAVE OCCURRED, THE EVALUATION MATERIAL SHALL, EXCEPT AS REQUIRED BY LAW,
BE KEPT CONFIDENTIAL BY PURCHASER, EXCEPT THAT THE EVALUATION MATERIAL OR
PORTIONS THEREOF MAY BE DISCLOSED TO PURCHASER'S PROSPECTIVE LENDERS AND
PROSPECTIVE PARTNERS OR OTHER CO-VENTURERS IN CONNECTION WITH THE PURCHASE OF
THE PROPERTY AND THEIR RESPECTIVE REPRESENTATIVES AND TO THOSE OF THEIR
RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ACCOUNTANTS, ATTORNEYS,
CONSULTANTS, ADVISERS AND AGENTS (COLLECTIVELY "PURCHASER'S REPRESENTATIVES")
WHO NEED TO KNOW SUCH INFORMATION FOR THE PURPOSE OF CONSUMMATING THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT (IT BEING UNDERSTOOD AND AGREED THAT
PURCHASER SHALL CAUSE THOSE REPRESENTATIVES TO HOLD THE EVALUATION MATERIAL
CONFIDENTIAL).
AS USED HEREIN, THE TERM "EVALUATION MATERIAL" DOES NOT INCLUDE
ANY INFORMATION WHICH AT THE TIME OF DISCLOSURE OR THEREAFTER IS GENERALLY
AVAILABLE TO AND KNOWN BY THE PUBLIC (OTHER THAN AS A RESULT OF ITS DISCLOSURE
BY PURCHASER OR PURCHASER'S REPRESENTATIVES).
(B)
WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER,
PURCHASER SHALL NOT, AND PURCHASER SHALL DIRECT PURCHASER'S REPRESENTATIVES NOT
TO, DISCLOSE TO ANY PERSON OR ENTITY OTHER THAN THOSE PERSONS OR ENTITIES WHO
ARE PERMITTED RECIPIENTS OF ANY EVALUATION MATERIAL IN ACCORDANCE WITH
SECTION 20(A) HEREOF, EITHER THE FACT THAT DISCUSSIONS OR NEGOTIATIONS ARE
AND/OR HAVE BEEN TAKING PLACE CONCERNING THE EXISTING LEASE OR THE PROPERTY, OR
ANY OF THE TERMS, CONDITIONS OR OTHER FACTS WITH RESPECT TO THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT, INCLUDING THE STATUS THEREOF.
(C)
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, PURCHASER SHALL NOT (AND SHALL NOT PERMIT ANY PURCHASER
REPRESENTATIVE TO) CONTACT, NOTIFY OR OTHERWISE COMMUNICATE WITH LESSOR DURING
THE TERM OF THIS AGREEMENT REGARDING THIS AGREEMENT, THE LEASE PURCHASE, THE
PROPERTY PURCHASE OR THE LEASEBACK LEASE, WITHOUT THE EXPRESS WRITTEN CONSENT OF
SELLER IN EACH INSTANCE.
(D)
THE PROVISIONS OF THIS SECTION 21 SHALL
SURVIVE THE CLOSING OR THE TERMINATION OF THIS AGREEMENT IF THE CLOSING DOES NOT
OCCUR.
22.
NOTICES.
ALL NOTICES, REQUESTS, DEMANDS AND
OTHER COMMUNICATIONS PROVIDED FOR BY THIS AGREEMENT SHALL