by and
liable under this Section 10(h) for such per diem amount. If, after any such
extension, the conditions precedent to Investor's obligation to effect the
Closing continue not to be satisfied (and Investor has not waived the same) or
neither Owner nor Investor elects such extension and, in either case, such
failure of condition precedent is not the result of Owner's default hereunder
(it being agreed that, without limitation, the inability to deliver the Required
Tenant Estoppel Certificates is not a default unless such inability derives from
Owner's failure to request the Required Tenant Estoppel Certificate as required
by Section 36 hereof), then Investor shall be entitled to terminate this
Agreement by notice given to Owner, and upon the timely giving of any such
termination notice, Investor shall be entitled to a return of the Deposit and
this Agreement shall terminate and neither party hereto shall have any further
rights or obligations hereunder other than those which are expressly provided to
survive the termination hereof. If the provisions of the preceding sentence
would be applicable, except that such failure of condition precedent is the
result of Owner's default hereunder, then Section 20(b) shall govern. The
provisions of this Section 10(h) shall survive any termination of this
Agreement.
- 39 -
11. CONDITION OF THE PROPERTY; REPRESENTATIONS.
(a) INVESTOR HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER OWNER NOR ANY OTHER OWNER PARTY, NOR ANY OTHER PERSON ACTING
ON BEHALF OF OWNER, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF
THE MATERIALS REVIEWED BY INVESTOR IN CONDUCTING ITS DUE DILIGENCE, NOR ANY
SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES, HAS MADE OR SHALL BE DEEMED
TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER
EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT
LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE), WITH RESPECT TO THE PROPERTY, THE PERMITTED USE OF THE
PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO
OR THE COMPLIANCE BY THE PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED
BY OR ASSOCIATED WITH THE PROPERTY, OR OTHERWISE RELATING TO THE PROPERTY OR THE
TRANSACTIONS CONTEMPLATED HEREIN. INVESTOR FURTHER ACKNOWLEDGES THAT ALL
MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE OWNER PARTIES HAVE BEEN
PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO
THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR
COMPLETENESS EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND INVESTOR SHALL
NOT HAVE ANY RECOURSE AGAINST OWNER OR ANY OF THE OTHER OWNER PARTIES IN THE
EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM , EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT. INVESTOR IS ENTERING INTO THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT BASED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION AND
INSPECTION OF THE PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY
OWNER, OR ANY OF THE OTHER OWNER PARTIES, EXCEPT FOR THE REPRESENTATIONS
EXPRESSLY SET FORTH HEREIN. INVESTOR EXPRESSLY