exceed $1,500,000.00, the transaction
will be consummated as described in this Agreement and any insurance proceeds
payable with respect to such damage or destruction (including business
interruption or loss of rental income insurance allocable to any
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period after the Closing) and not previously applied to the restoration of the
Property along with any insurance deductible payable by Seller will be paid or
assigned to Buyer at Closing. Notwithstanding anything to the contrary herein,
to the extent that there is a casualty at the Property and Seller maintains
business interruption or loss of rental income insurance, following the Closing,
at Buyer's request, Seller shall, to the extent permitted by any such policy,
keep such policies in full force and effect and Seller shall pay over any
proceeds relating to same to Buyer. Buyer shall be responsible for payment of
any portion of the premium payable and necessary to keep such policies in full
force and effect.
14.REMEDIES.
14.1
Buyer's Remedies Generally. IN THE EVENT THE CLOSING FAILS TO OCCUR
BECAUSE OF SELLER'S BREACH OF THIS AGREEMENT OR FAILURE TO PERFORM ANY OF
SELLER'S OBLIGATIONS UNDER THIS AGREEMENT WHICH FAILURE IS NOT CURED WITHIN FIVE
(5) BUSINESS DAYS OF RECEIPT OF WRITTEN NOTICE THEREOF FROM BUYER, THEN BUYER
SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT UPON WRITTEN NOTICE TO SELLER.
UPON SUCH TERMINATION, (i) SELLER SHALL IMMEDIATELY RETURN, OR CAUSE ESCROW
HOLDER TO RETURN, TO BUYER THE DEPOSIT AND ANY INTEREST THEREON ALONG WITH ANY
AND ALL DOCUMENTS AND OTHER FUNDS THERETOFORE DEPOSITED OR PAID BY BUYER WITH
INTEREST THEREON, (ii) BUYER SHALL DELIVER TO SELLER A COPY OF EACH OF THE
PROPERTY CONDITION SURVEY REPORT, THE PHASE I REPORT AND ANY REPORT WITH RESPECT
TO THE PHYSICAL CONDITION OF THE PIER OR THE ELEVATORS COMMISSIONED BY BUYER AND
RELATED TO THE PROPERTY AND (iii) NEITHER PARTY HERETO SHALL HAVE ANY FURTHER
OBLIGATION TO OR RIGHTS AGAINST THE OTHER EXCEPT ANY RIGHTS OR OBLIGATIONS OF
EITHER PARTY WHICH ARE EXPRESSLY STATED TO SURVIVE TERMINATION OF THIS AGREEMENT
AND SELLER SHALL REIMBURSE BUYER FOR BUYER'S ACTUAL, VERIFIABLE (i.e.,
DOCUMENTED), THIRD-PARTY, OUT-OF-POCKET EXPENSES (NOT TO EXCEED TWO HUNDRED
THOUSAND AND NO/100 DOLLARS ($200,000.00) IN THE AGGREGATE FOR BUYER) INCURRED
IN EVALUATING THE PROPERTY, ARRANGING FINANCING TO ACQUIRE THE PROPERTY AND THE
NEGOTIATION OF THIS AGREEMENT. ALTERNATIVELY, NOTWITHSTANDING SUCH FAILURE OF
CONDITION AND/OR SELLER'S BREACH, BUYER MAY ELECT TO PROCEED WITH THE
TRANSACTIONS CONTEMPLATED HEREUNDER OR PURSUE SPECIFIC PERFORMANCE AGAINST
SELLER, AS THE ONLY OTHER REMEDIES AVAILABLE TO BUYER. IN NO EVENT SHALL SELLER
BE LIABLE TO BUYER FOR ANY MONETARY DAMAGES.
14.2
No Remedy If Buyer Had Knowledge. Notwithstanding anything contained
herein to the contrary, if any of the representations or warranties of Seller
that survive Closing contained in this Agreement or in any document or
instrument delivered in connection herewith are false or inaccurate, or Seller
is in breach or default of any of its obligations under this Agreement that
survive Closing, and if Buyer shall have had knowledge of