(hereinafter
9
defined) if Closing occurs under this Agreement (and the provisions of this
sentence shall expressly inure to the benefit of and be enforceable by Darren B.
Casey and may not be amended or modified without the express prior written
consent of Darren B. Casey).
(d)Notwithstanding anything to the contrary contained in this Agreement, if
Purchaser discovers after Closing that Seller has breached any of Seller's
Express Representations and Purchaser has provided timely notice thereof
pursuant to Section 4.4(b), then Purchaser shall be entitled to bring an action
for damages against Seller, provided that (a) the aggregate liability of Seller
for all damages of any kind related to this Agreement or this transaction shall
be limited to Five Hundred Thousand and No/100 Dollars ($500,000.00) (the
"Cap"), and (b) Seller shall be liable only for actual damages for any breach or
default by Seller under this Section 4.4, and Purchaser waives the right to
collect special, consequential, punitive, or any other damages other than actual
damages in connection with this Section 4.4.
The Cap shall not be applicable to
any credits and prorations under Section 6.3, Seller's indemnity under Section
9.2 or Seller's fraud.
The provisions of this Section 4.4(d) shall expressly
survive Closing for the later to occur of six (6) months following the Closing
Date ("Survival Period") or (ii) until any claim brought by Purchaser against
Seller prior to the expiration of the Survival Period in accordance with this
Agreement has been finally resolved by a court of competent jurisdiction (with
all applicable appeal periods having expired without an appeal having been
taken) or by written agreement of Seller and Purchaser.
(e)PURCHASER ACKNOWLEDGES AND AGREES THAT PURCHASER IS EXPERIENCED IN THE
OWNERSHIP AND OPERATION OF PROPERTIES SIMILAR TO THE PROPERTY AND THAT PURCHASER
PRIOR TO THE CLOSING DATE WILL HAVE INSPECTED THE PROPERTY TO ITS SATISFACTION.
PURCHASER ACKNOWLEDGES THAT IT IS FULLY RELYING ON PURCHASER'S (OR PURCHASER'S
REPRESENTATIVES') INSPECTIONS OF THE PROPERTY AND, EXCEPT FOR THE EXCEPTED
MATTERS, NOT UPON ANY STATEMENTS (ORAL OR WRITTEN)WHICH MAY HAVE BEEN MADE OR
MAY BE MADE (OR PURPORTEDLY MADE) BY SELLER OR ANY OF ITS
REPRESENTATIVES.
EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER ACKNOWLEDGES THAT
PURCHASER HAS (OR PURCHASER'S REPRESENTATIVES HAVE), OR PRIOR TO THE CLOSING
DATE WILL HAVE, INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT DEEMED
NECESSARY BY PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE THE CONDITION OF
THE PROPERTY AND ALL OTHER ASPECTS OF THE PROPERTY (INCLUDING, BUT NOT LIMITED
TO, THE ENVIRONMENTAL CONDITION OF THE PROPERTY), AND EXCEPT FOR THE EXCEPTED
MATTERS, PURCHASER ACKNOWLEDGES THAT PURCHASER IS RELYING UPON ITS OWN (OR ITS
REPRESENTATIVES') INSPECTION, EXAMINATION AND EVALUATION OF THE PROPERTY.
AS A
MATERIAL PART OF THE CONSIDERATION FOR THIS CONTRACT AND THE PURCHASE, EXCEPT
FOR THE EXCEPTED MATTERS, PURCHASER HEREBY AGREES TO ACCEPT THE PROPERTY ON THE
CLOSING DATE IN ITS "AS IS", "WHERE IS" CONDITION, WITH ALL FAULTS, AND WITHOUT
REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF