(ii) is expressly permitted under the
terms of this Agreement or is beyond the reasonable control of Seller to
prevent. If, in spite of any change in the truth or accuracy of such
representation or warranty of Seller set forth in this Agreement, the Closing
occurs then Seller's representations, warranties and covenants set forth in this
Agreement shall be deemed to have been modified by all statements made in any
notice or notices of modification as given by Seller to Buyer pursuant to this
Section 7.5 prior to the Closing. Notwithstanding anything to the contrary
contained in this Agreement, Seller shall not have any liability after the
Closing for any breach of any covenant, representation or warranty hereunder of
which Buyer had knowledge as of the Closing; Buyer shall automatically be deemed
to have irrevocably and forever waived and relinquished any and all rights and
remedies that Buyer might otherwise have had as a result of such breach of such
representation or warranty (whether pursuant to this Agreement, at law or
otherwise). This Section 7.5 shall survive the Closing.
ARTICLE VIII.
TERMINATION OF AGREEMENT
8.1
DEFAULT BY SELLER. IN THE EVENT THE CLOSING OF ESCROW FOR THE SALE OF THE
PROJECT AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED DUE TO SELLER'S DEFAULT
(WHICH IS NOT CURED BY SELLER WITHIN FIVE (5) BUSINESS DAYS OF SELLER'S RECEIPT
OF NOTICE THEREOF FROM BUYER) TO UNDER THIS AGREEMENT, BUYER SHALL BE ENTITLED,
AS ITS SOLE AND EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, TO EITHER (A) TO
TERMINATE THIS AGREEMENT AND RECEIVE A REIMBURSEMENT FROM SELLER FOR BUYER'S
ACTUAL DUE DILIGENCE COSTS PAID TO THIRD PARTIES IN CONNECTION WITH THIS
TRANSACTION (INCLUDING REASONABLE ATTORNEYS' FEES) (BUYER SHALL PROVIDE SUCH DUE
DILIGENCE COSTS TO SELLER
29
TOGETHER WITH REASONABLE SUPPORTING DOCUMENTATION) NOT TO EXCEED ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) WHICH SHALL OPERATE TO TERMINATE THIS AGREEMENT
AND RELEASE SELLER FROM ANY AND ALL LIABILITY HEREUNDER, OR (B) IN LIEU OF THE
REMEDY SET FORTH IN SUBSECTION (A) ABOVE, TO PURSUE SPECIFIC PERFORMANCE OF THE
CONVEYANCE OF THE PROJECT WITHOUT RIGHT TO ANY OTHER DAMAGES OR OTHER EQUITABLE
RELIEF WHATSOEVER (EXCEPT IN THE EVENT THAT SELLER'S VOLUNTARY ACTIONS MAKE
SPECIFIC PERFORMANCE UNAVAILABLE OR IMPRACTICAL AS A REMEDY TO BUYER, IN WHICH
CASE BUYER SHALL BE ENTITLED ANY AND ALL DAMAGES AND REMEDIES AVAILABLE AT LAW
OR EQUITY), BUT ONLY IF BUYER IS READY, WILLING AND ABLE TO CLOSE ON OR BEFORE
THE SCHEDULED CLOSING DATE AND BUYER FILES SUCH SPECIFIC PERFORMANCE ACTION
WITHIN SIXTY (60) DAYS FOLLOWING THE SCHEDULED CLOSING DATE. BUYER SHALL NOT BE
ENTITLED TO RECORD A LIEN OR LIS PENDENS AGAINST ANY OR ALL OF THE PROPERTIES
OTHER THAN IN CONNECTION AND CONCURRENTLY WITH THE FILING OF SUCH SPECIFIC
PERFORMANCE ACTION. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THIS
SECTION 8.1 LIMIT THE DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER
PARTY DUE TO (A) THE OTHER PARTY'S OBLIGATION TO INDEMNIFY SUCH PARTY IN
ACCORDANCE WITH THIS AGREEMENT, (B) ATTORNEYS' FEES AND