Agreement Of Purchase And Sale (Page 16 of 30) in pdf

to Closing any one or more of Purchaser’s representations or warranties are breached in any material

respect, Seller shall be entitled, as its sole remedy (except as provided in Sections 4.10, 8.2, 10.3 and 10.4

hereof), to terminate this Agreement and recover the Earnest Money as liquidated damages and not as

penalty, in full satisfaction of claims against Purchaser hereunder. Seller and Purchaser agree that

Seller’s damages resulting from Purchaser’s default are difficult, if not impossible, to determine and the

Earnest Money is a fair estimate of those damages which has been agreed to in an effort to cause the

amount of such damages to be certain. Notwithstanding anything in this Section 10.1 to the contrary, in

the event of Purchaser’s default or a termination of this Agreement, Seller shall have all remedies

available at law or in equity in the event Purchaser or any party related to or affiliated with Purchaser is

asserting any claims or right to the Property that would otherwise delay or prevent Seller from having

clear, indefeasible title to the Property. In all other events Seller’s remedies shall be limited to those

described in this Section 10.1 and Sections 4.10, 8.2, 10.3 and 10.4 hereof. If Closing is consummated,

Seller shall have all remedies available at law or in equity if Purchaser fails to perform any obligation of

Purchaser under this Agreement.

10.2

Purchaser’s Remedies.

If Seller fails to perform its obligations pursuant to this

Agreement for any reason except failure by Purchaser to perform hereunder, or if prior to Closing any one

or more of Seller’s representations or warranties are breached in any material respect, Purchaser shall

elect, as its sole remedy (Purchaser hereby waiving all other rights or remedies), either to (i) terminate

this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover

the Earnest Money, (ii) enforce specific performance, or (iii) waive said failure or breach and proceed to

Closing. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to

terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or

assert a cause of action for specific performance against Seller on or before ten (10) business days

following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such

claim or cause of action in the county in which the Property is located within two (2) months following

the scheduled Closing Date. Purchaser’s remedies shall be limited to those described in this Section 10.2

and Sections 10.3 and 10.4 hereof. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT

PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR,

EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING

PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER

LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY,

WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE.

10.3

Attorneys’ Fees. If either party hereto employs an attorney in connection with claims

by one party against the other arising from the operation of this Agreement, the non-prevailing party shall

pay the prevailing party all reasonable fees and expenses, including attorneys’ fees, incurred in

connection with such transaction.

10.4

Other Expenses. If this Agreement is terminated due to the default of a party, then the

defaulting party shall pay any fees or charges due to Title Company for holding the Earnest Money as

well as any escrow cancellation fees or charges and any fees or charges due to the Title Company for

preparation and/or cancellation of the Title Commitment.

ARTICLE 11 - Disclaimers, Release and Indemnity

11.1

Disclaimers By Seller. Except as expressly set forth in this Agreement, it is understood

and agreed that Seller has not at any time made and are not now making, and they specifically disclaim,

any warranties or representations of any kind or character, express or implied, with respect to the

Property, including, but not limited to, warranties or representations as to (i) matters of title,

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H-Earnest Money Contract

Agreement Of Purchase And Sale Page 16

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