in the event Contributor breaches or defaults in its
obligations under this Agreement, and such breach or default shall not have been
cured by Contributor within ten (10) Business Days after notice from Investor,
and provided Investor shall not be in default hereunder, shall be to enforce
specific performance of Contributor's obligation to close the transactions
provided for herein, or to terminate this Agreement. The foregoing
notwithstanding, if Contributor's default or breach hereunder is the result of
an intentional act or omission of Contributor which makes (and was done with the
intention to make or could reasonably be expected to make) specific performance
of this Agreement impracticable or unavailable, each of the Venture and the
Investor may assert and seek judgment as to all other remedies available to it
at law or in equity, which remedies shall be cumulative. IF INVESTOR TERMINATES
THIS AGREEMENT PURSUANT TO THIS SECTION 1.4, CONTRIBUTOR AND INVESTOR AGREE THAT
INVESTOR'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX.
CONTRIBUTOR AND INVESTOR THEREFORE AGREE THAT, IN SUCH EVENT, INVESTOR, AS
INVESTOR'S SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO ALL OF ITS REMEDIES
AS PROVIDED IN THE BLOCKED ACCOUNT AGREEMENT, DATED AS OF THE DATE HEREOF, BY
AND AMONG CONTRIBUTOR, INVESTOR AND AN ESCROW AGENT (THE "BLOCKED ACCOUNT
AGREEMENT") AND LIQUIDATED DAMAGES IN AN AMOUNT EQUAL TO INVESTOR'S
OUT-OF-POCKET EXPENSES WITH RESPECT TO UNRELATED THIRD-PARTY SERVICE PROVIDERS
INCURRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY (COLLECTIVELY,
THE "INVESTOR DAMAGE PAYMENT"), IN WHICH CASE: (I) THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE OF NO FURTHER FORCE OR EFFECT
AND NO PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER OTHER THAN
PURSUANT TO ANY PROVISION
4
HEREOF WHICH EXPRESSLY SURVIVES THE TERMINATION OF THIS AGREEMENT, (II) THE
INVESTOR DAMAGE PAYMENT TO INVESTOR SHALL BE THE FULL, AGREED AND LIQUIDATED
DAMAGES, AND (III) ALL TITLE AND ESCROW CANCELLATION CHARGES, IF ANY, SHALL BE
PAID BY CONTRIBUTOR. INVESTOR AND CONTRIBUTOR HEREBY AGREE THAT THE AMOUNT OF
THE INVESTOR DAMAGE PAYMENT IS A FAIR AND REASONABLE ESTIMATE OF THE TOTAL
DETRIMENT THAT INVESTOR WOULD SUFFER IN THE EVENT OF CONTRIBUTOR'S DEFAULT AND
FAILURE TO DULY COMPLETE THE TRANSACTIONS DESCRIBED HEREIN. IF INVESTOR SEEKS TO
TERMINATE THIS AGREEMENT AS PROVIDED IN THIS SECTION 1.4, INVESTOR IRREVOCABLY
WAIVES THE RIGHT TO SEEK OR OBTAIN ANY OTHER LEGAL OR EQUITABLE REMEDIES,
INCLUDING THE REMEDY OF SPECIFIC PERFORMANCE. INVESTOR AND CONTRIBUTOR
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION
1.4, AND BY THE INITIALS OF THEIR AUTHORIZED REPRESENTATIVES IMMEDIATELY BELOW
AGREE TO BE BOUND BY ITS TERMS.
Investor's initials
RXP
Contributor's initials
DEL
Venture's
initials
DEL _
ARTICLE 2:INSPECTION
2.1Contributor's Delivery of Specified Documents. To the extent such items are
presently in Contributor's or its property manager's possession or control,
Contributor has provided to Investor prior to the date hereof, access to the
information and documents set forth on Exhibit H attached hereto (the "Property
Information") related to each of the