IN WRITING, OF THE SPECIFIC NATURE AND EXTENT OF
THE ALLEGED DEFAULT OR UNTRUTHFUL OR INCORRECT REPRESENTATION OR WARRANTY, THEN,
IN EITHER SUCH CASE, PURCHASER SHALL THEREAFTER HAVE NO RIGHT TO BRING ANY
ACTION FOR DAMAGES OR PROCEEDINGS WITH ANY OTHER LEGAL COURSE OF CONDUCT AGAINST
SELLER ARISING BY REASONS OF ANY SUCH DEFAULT OR MISREPRESENTATION (THE RIGHT TO
BRING SUCH ACTIONS OR PROCEEDINGS BEING EXPRESSLY AND VOLUNTARILY WAIVED BY
PURCHASER FOLLOWING AND UPON ADVICE OF ITS COUNSEL).
(C)
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN SECTION 14(A) AND SECTION 14(B) HEREIN WILL SURVIVE
THE CLOSING FOR A PERIOD OF ONE HUNDRED EIGHTY (180) DAYS, BEFORE THE EXPIRATION
OF WHICH THE PARTY CLAIMING A BREACH MUST HAVE
22
NOTIFIED THE OTHER IN WRITING OF THE ALLEGED BREACH.
ANY SUCH CLAIM SHALL BE
LIMITED TO ACTUAL DAMAGES (SPECIFICALLY INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS' FEES AND EXPENSES AND COURT COSTS) SUFFERED BY THE
CLAIMING PARTY (SPECIFICALLY EXCLUDING CONSEQUENTIAL OR PUNITIVE DAMAGES), AND
IN NO EVENT SHALL SUCH DAMAGES FOR THE RESPECTIVE CLAIMING PARTY EXCEED THE
AMOUNT OF $250,000.00.
17.
MERGER.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED TO THE CONTRARY IN
THIS AGREEMENT, NO REPRESENTATIONS, WARRANTIES, COVENANTS OR OTHER OBLIGATIONS
OF SELLER SET FORTH IN THIS AGREEMENT SHALL SURVIVE THE CLOSING, AND NO ACTION
BASED THEREON SHALL BE COMMENCED AFTER THE CLOSING.
THE DELIVERY AND ACCEPTANCE
OF THE ASSIGNMENT OF LEASE AT THE CLOSING, WITHOUT THE SIMULTANEOUS EXECUTION
AND DELIVERY OF A SPECIFIC AGREEMENT WHICH BY ITS TERMS SHALL SURVIVE THE
CLOSING, SHALL BE DEEMED TO CONSTITUTE FULL COMPLIANCE BY SELLER WITH ALL OF THE
TERMS, CONDITIONS AND COVENANTS OF THIS AGREEMENT ON ITS PART TO BE PERFORMED.
18.
CONDITIONS TO ESCROW CLOSING AND CLOSING.
(A)
CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE ON THE ESCROW
CLOSING.
PURCHASER'S OBLIGATION TO EFFECTUATE THE ESCROW CLOSING SHALL BE
SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS:
(I)
SELLER SHALL HAVE PERFORMED, SATISFIED AND COMPLIED WITH, OR
TENDERED PERFORMANCE OF ALL OF THE COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED
BY THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY SELLER ON OR BEFORE THE
CLOSING DATE.
(II)
EXCEPT AS PROVIDED IN SECTION 14(A) HEREOF, ALL REPRESENTATIONS
AND WARRANTIES OF SELLER IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND AS OF THE ESCROW CLOSING
DATE.
(III)
SELLER HAVE DELIVERED TO THE CLOSING AGENT PURSUANT TO THE
CLOSING AGREEMENT EITHER (I) COMPLETE SUBTENANT ESTOPPELS EACH SUBSTANTIALLY IN
THE FORM AND/OR SUBSTANCE, IF ANY, PRESCRIBED BY THE APPLICABLE SUBLEASES OR, IF
NO SUCH FORM AND/OR SUBSTANCE IS PRESCRIBED, IN THE FORM ATTACHED HERETO AS
EXHIBIT I (THE "SUBTENANT ESTOPPEL"), SUCH ESTOPPELS TO BE DATED NO MORE THAN 45
DAYS PRIOR TO THE ESCROW CLOSING DATE, OR (II) WITH REGARD TO ANY SUCH SUBTENANT
WITH RESPECT TO WHICH (X) SELLER DOES NOT DELIVER A SUBTENANT ESTOPPEL, OR (Y)
THE SUBTENANT ESTOPPEL DELIVERED IS MATERIALLY INCOMPLETE, OUTDATED OR NOT IN
SUBSTANTIAL CONFORMITY WITH EXHIBIT I, A CERTIFICATE