NOT AS A RESULT OF ANY
NOTICE FROM SELLER DELIVERED PURSUANT TO SECTION 9(B)), BUYER ACTUALLY
DETERMINES PRIOR TO THE CLOSING DATE THAT ANY OF THE REPRESENTATIONS OF SELLER
IN SUBPARAGRAPHS 9(A) WERE NOT TRUE WHEN GIVEN, BUYER'S SOLE RIGHT AND REMEDY
SHALL BE TO TERMINATE THIS AGREEMENT (AND RECEIVE A REFUND OF THE DEPOSIT) BY
GIVING TO SELLER WRITTEN NOTICE OF SUCH TERMINATION WITHIN TEN (10) DAYS AFTER
BUYER ACTUALLY LEARNS OF THE BREACH OF SUCH REPRESENTATION; PROVIDED, HOWEVER,
THAT IF BUYER FIRST ACQUIRED KNOWLEDGE OF SUCH BREACH BETWEEN THE EXPIRATION OF
THE INSPECTION PERIOD AND THE CLOSING DATE, AND IF THE BREACH WAS THE RESULT OF
A WILLFUL ACT BY SELLER, THEN BUYER SHALL, IN ADDITION AND CONTINGENT UPON
TERMINATION OF THE AGREEMENT, BE ENTITLED TO REIMBURSEMENT FOR OUT-OF-POCKET DUE
DILIGENCE COSTS AND ATTORNEYS' FEES REASONABLY INCURRED BY BUYER IN CONNECTION
WITH THIS AGREEMENT, UP TO A MAXIMUM REIMBURSEMENT OF THIRTY FIVE THOUSAND AND
00/100 DOLLARS ($35,000.00).
IF BUYER FAILS TO GIVE SUCH WRITTEN TERMINATION
NOTICE TO SELLER WITHIN SUCH TIME PERIOD, BUYER SHALL BE DEEMED TO HAVE WAIVED
ANY RIGHT OR REMEDY (INCLUDING, WITHOUT LIMITATION, ANY RIGHT UNDER THIS
AGREEMENT TO TERMINATE THIS AGREEMENT) BY REASON OF SUCH BREACH.
(III)
AFTER THE CLOSING, SELLER SHALL HAVE NO
LIABILITY TO BUYER BY REASON OF A BREACH OR DEFAULT OF ANY OF SELLER'S
REPRESENTATIONS, UNLESS BUYER SHALL HAVE GIVEN TO SELLER WRITTEN NOTICE
("WARRANTY NOTICE") OF SUCH BREACH OR DEFAULT WITHIN THE SURVIVAL PERIOD, AND
SHALL HAVE GIVEN TO SELLER AN OPPORTUNITY TO CURE ANY SUCH BREACH OR DEFAULT
WITHIN A REASONABLE PERIOD OF TIME AFTER SELLER RECEIVES BUYER'S WARRANTY
NOTICE.
NO CLAIM FOR ANY SUCH BREACH OF ANY REPRESENTATION OR WARRANTY OF
SELLER SHALL BE ACTIONABLE OR PAYABLE UNLESS THE VALID CLAIMS FOR ALL SUCH
BREACHES COLLECTIVELY AGGREGATE MORE THAN $35,000.00, IN WHICH EVENT THE FULL
AMOUNT OF SUCH CLAIMS SHALL BE ACTIONABLE.
IN NO EVENT, HOWEVER, SHALL THE
AGGREGATE LIABILITY OF SELLER TO BUYER BY REASON OF A BREACH OR DEFAULT
HEREUNDER EXCEED $250,000.00.
IN ANY EVENT, SELLER'S LIABILITY SHALL BE LIMITED
TO ACTUAL DAMAGES AND SHALL NOT INCLUDE CONSEQUENTIAL DAMAGES.
ANY LITIGATION
WITH RESPECT TO ANY REPRESENTATION MUST BE COMMENCED WITHIN THE SURVIVAL PERIOD,
AND IF NOT COMMENCED WITHIN SUCH TIME PERIOD, BUYER SHALL BE DEEMED TO HAVE
WAIVED ITS CLAIMS FOR SUCH BREACH OR DEFAULT.
IN ANY EVENT, ANY PROCEEDING OR
LITIGATION BASED UPON A CLAIM OF FRAUD, MISREPRESENTATION OR SIMILAR THEORY
SHALL BE COMMENCED BY BUYER WITHIN THE SURVIVAL PERIOD AND, IF APPROPRIATE
PROCEEDINGS ARE NOT COMMENCED WITHIN SUCH TIME PERIOD, BUYER SHALL BE DEEMED TO
HAVE WAIVED ANY SUCH CLAIM.
25
(D)
SURVIVAL.
THE PROVISIONS OF THIS PARAGRAPH 22 SHALL SURVIVE CLOSING AND
DELIVERY OF THE DEED.
23.
MISCELLANEOUS.
(a)
Captions or Headings; Interpretation.
The captions or headings of the
Paragraphs and subparagraphs of this Agreement are for convenience only, and
shall not control or affect the meaning or construction of any of the terms or
provisions of this Agreement.
Wherever in