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TDSC » Topics » 12.13. Recordation . Purchaser and Seller agree not to record this Agreement or any memorandum hereof.This excerpt taken from the TDSC 8-K filed Dec 20, 2006. 12.13. Recordation. Purchaser and Seller agree not to record this Agreement or any memorandum hereof.12.14. Proper Execution. The submission by Seller to Purchaser of this Agreement in unsigned form shall be deemed to be a submission solely for Purchaser’s consideration and not for acceptance and execution. Such submission shall have no binding force and effect, shall not constitute an option, and shall not confer any rights upon Purchaser or impose any obligations upon Seller irrespective of any reliance thereon, change of position or partial performance. The submission by Seller of this Agreement for execution by Purchaser and the actual execution and delivery thereof by Purchaser to Seller shall similarly have no binding force and effect on Seller unless and until Seller shall have executed this Agreement and the Deposit shall have been received by the Title Company and a counterpart thereof shall have been delivered to Purchaser.12.15. Tax Protest. If, as a result of any tax protest or otherwise, any refund is paid or reduction of any real property or other tax or assessment is made available relating to the Property with respect to any period for which, under the terms of this Agreement, Seller is responsible, Seller shall be entitled to receive or retain such refund or the benefit of such reduction, less the equitable prorated costs of collection.12.16. Survival and Limitation of Representations and Warranties. The representations and warranties set forth in this Agreement, including but not limited to those set forth in Section 1.2, Section 3.3.2 and Section 5.1 above (collectively the “Surviving Obligations”), are made as of the date of this Agreement and are remade as of the Closing Date and shall survive the Closing but written notification of any claim arising therefrom must be received by Seller within one (1) year of the Closing Date or such claim shall be forever barred and Seller shall have no liability with respect thereto. In addition, upon Seller’s receipt of written notification of any such claim, Seller shall first be afforded at least sixty (60) days to cure any breach of Seller’s
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representations and warranties prior to Purchaser’s filing any claim in connection therewith. The aggregate liability of Seller for breach of any representations and warranties shall not exceed $100,000; and recovery of actual damages up to that amount is Purchaser’s sole and exclusive remedy for any such breach; provided, however, Seller shall have no liability to Purchaser for matters disclosed by Seller or discovered by Purchaser prior to Closing. For matters disclosed or discovered prior to Closing, Purchaser’s sole rights and remedies shall be as set forth in Section 11.2. Whenever a representation or warranty is made in this Agreement on the basis of the knowledge of Seller, such representation or warranty is made with the exclusion of any facts otherwise known or disclosed to Purchaser, and is made solely on the base of the actual knowledge without inquiry or investigation of Scott Ozymy and Larry Wilson.12.17. Time to Execute and Deliver. This Agreement shall be void if one fully executed original is not received by Seller on or before 5:00 p.m. C.D.T. date five (5) business days after Seller has delivered its executed copy of this Agreement to Purchaser.12.18. Calculation of Time Periods. Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included at, unless such last day is a Saturday, Sunday or legal holiday for national banks in the location where the Property is located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday. Unless otherwise specified, the last day of any period of time described herein shall be deemed to end at 5:00 p.m. Rock Hill, South Carolina time.12.19. Limitation of Liability. Purchaser hereby acknowledges and agrees that in no event shall any limited partner of Seller ever be liable to Purchaser as a result of a breach of this Agreement, and Purchaser agrees to look solely to Seller or the general partner of Seller for satisfaction of any claim, loss or damage, even if Seller is hereinafter dissolved.12.20. Jury Waiver. PURCHASER AND SELLER DO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING OR SELLER AT CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND ACCEPT THIS AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING AND SHALL SURVIVE THE CLOSING OF TERMINATION OF THIS AGREEMENT.12.21. Fee Agreement and Incentives Agreement. Purchaser and Seller have agreed on the form of the Fee-in-Lieu-of-Taxation Agreement and Incentives Agreement attached hereto as Exhibit 12.21. Purchaser and Seller agree to reasonably cooperate with each other to finalize and execute such agreements, whether before or after Closing, provided that such
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