Common use of Breach by Seller Clause in Contracts

Breach by Seller. In the event the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Seller, Buyer may elect, as the sole and exclusive remedy of Buyer, to (i) terminate this Agreement and receive the Deposit from Escrow Holder, and in such event each party shall be released from any liability to the other party hereunder, other than with respect to those obligations that expressly survive termination of this Agreement, or (ii) enforce specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00).

Breach by Seller. In the event the Close of Escrow If Seller shall fail to perform its covenants or agreements required to be performed hereunder and the transactions contemplated hereby do not occur as provided herein by reason of the default such failure shall continue for three (3) days after written notice from Purchaser, or if any of Seller's representations and warranties set forth in this Agreement arc not true and correct in all material respects on the date hereof or on the Closing Date, Buyer may electPurchaser shall have the right, as the at its sole and exclusive remedy of Buyeroptions, to either: (i) terminate this Agreement and receive a refund of the Deposit from Escrow HolderDeposit, and in such event each and, upon receipt of the Deposit, neither party shall be released from have any liability further rights or obligations to the other party hereunder, other than with respect to those under this Agreement except such rights and obligations that as expressly survive termination of this Agreement, ; or (ii) enforce specific performance of solely for Seller’s obligation 's failure to convey the Deed to the Property to Buyer hereunder. Buyer Purchaser at Closing, seek specific performance for Seller's failure to convey such Deed: provided, however, (A) Purchaser shall only be deemed entitled to have elected to terminate this Agreement specific performance if (as provided in subsection (ix) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty is filed within ten (30) days after written notice of termination from Seller or thirty (3010) days after the originally scheduled Closing Date, whichever and (y) Purchaser is not in default of any material terms under this Agreement beyond any applicable grace, notice or cure period. For purposes of clarification, the remedy of specific performance shall occur first, or having given not be available to enforce any other obligation of Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Datehereunder. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s Purchaser may not seek any other remedies either at law or in equity, as to claims first equity in connection with or arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions in from this Agreement or the transactions contemplated hereby. In the event of a successful specific performance action by Purchaser, the full Purchase Price, less all actual and reasonable out-of-pocket expenses incurred by Purchaser in connection with such specific performance proceeding, shall be paid to Seller at the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)time of Closing.

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser’s default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive a refund of the Deposit from Escrow HolderXxxxxxx Money, and in such event each neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreementthe Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate obligations under this Agreement (as provided in subsection Agreement; provided, however, that (i) abovePurchaser shall only be entitled to such remedy if (A) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action is filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Date. Notwithstanding default by Seller, (B) Purchaser is not in default under this Agreement beyond any applicable notice and cure period, (C) Purchaser has tendered an amount equal to three percent (3%) of the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow Purchase Price to the extent Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “AS IS, WHERE IS” condition Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofdefault within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Buyer Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by SellerSeller under any of the terms of this Agreement. Notwithstanding In no event shall Seller be liable to Purchaser for any provisions in this Agreement to the contrarypunitive, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)speculative or consequential damages.

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser’s default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive a refund of the Deposit from Escrow HolderXxxxxxx Money, and in such event each neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreementthe Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate obligations under this Agreement (as provided in subsection Agreement; provided, however, that (i) abovePurchaser shall only be entitled to such remedy if (A) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action is filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Date. Notwithstanding default by Seller, (B) Purchaser is not in default under this Agreement beyond any applicable notice and cure period, (C) Purchaser has tendered an amount equal to three percent (3%) of the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow Purchase Price to the extent Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “AS IS, WHERE IS” condition Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofdefault within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Buyer Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by Seller under any of the terms of this Agreement. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages. Breach by Purchaser. If Purchaser fails to comply with any of the terms, conditions or obligations of this Agreement, Seller may terminate this Agreement and thereupon shall be entitled to the Xxxxxxx Money as liquidated damages (and not as a penalty) and as Seller’s sole remedy and relief hereunder (except for the Surviving Obligations). Seller hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Purchaser, Seller will first deliver written notice of said default to Purchaser, and if Purchaser so elects, Purchaser shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Purchaser’s receipt of such notice; provided, however, that in the event Purchaser fails to consummate the closing on the Closing Date, Purchaser shall have the opportunity, but not the obligation, to cure such default within five (5) days of the Closing Date; further provided that Purchaser shall not be entitled to any such cure period for a failure to consummate the closing on the Closing Date pursuant to the terms and conditions of this Agreement if such failure is solely due to Purchaser’s failure to fund the Purchase Price on the Closing Date (other than a delay caused by Purchaser’s lender, if any, in which case Purchaser shall be entitled to the aforementioned five (5) day cure period). Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach, and Seller and Purchaser agree that these sums represent reasonable compensation to Seller for such breach. Notwithstanding any the provisions in this Agreement to of Section 8.2(a) above, the contrary, Seller’s maximum liability under this Section 5.12 foregoing shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00).in any way limit, affect or impair any of Purchaser’s indemnities as provided in Sections 4.2, 6.3(b) or 10.2 of this Agreement. FUTURE OPERATIONS

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser’s default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser shall be entitled, as the its sole and exclusive remedy of Buyerremedies, to (i) terminate this Agreement and receive the Deposit from Escrow Holder, and in such event each party shall be released from any liability to the other party hereunder, other than with respect to those obligations that expressly survive termination of this Agreement, or (ii) enforce specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following (i) pursue the Close remedy of Escrow specific performance of Seller’s obligations under this Agreement, provided that Purchaser must commence such an action within ninety (90) days after the date the Closing was to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; providedhave occurred, and provided further, however, Buyer shall seek only actual damages and not consequential, special or indirect damages that in the event that Purchaser is unable to obtain specific performance as a result of the willful or wrongful acts or omissions of Seller, including without limitation the conveyance of the Property by Seller to a third party following Seller’s default hereunder, then Purchaser shall be entitled to seek punitive and/or consequential damages against Seller, including a claim for lost profits, or (ii) terminate this Agreement, receive a refund of the Xxxxxxx Money, and pursue an action against Seller to recover any default and all actual damages incurred directly or indirectly by SellerPurchaser and/or any affiliates of Purchaser in connection with the transaction contemplated by this Agreement. Notwithstanding any provisions anything contained in this Agreement to the contrary, in the event Seller, directly or indirectly, sells the Property within a period of two (2) years following the date of a default by Seller hereunder, for a purchase price in excess of the Purchase Price, then Seller shall be obligated to pay any such excess amount to Purchaser, as additional damages for Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)default hereunder.

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser’s default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive a refund of the Deposit from Escrow HolderExxxxxx Money together with reimbursement by Seller to Purchaser of Purchaser’s actual and documented out-of-pocket costs and expenses in connection with this transaction in an amount not to exceed $50,000 in the aggregate, and in such event each neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreementthe Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate obligations under this Agreement (as provided in subsection Agreement; provided, however, that (i) abovePurchaser shall only be entitled to such remedy if (A) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action is filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Date. Notwithstanding default by Seller, (B) Purchaser is not in default under this Agreement, (C) Purchaser has tendered an amount equal to five percent (5%) of the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow Purchase Price to the extent Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller (such claim expressly survives termination or Closing funds to be administered in the same manner as more fully set forth the Exxxxxx Money as provided in Section 6.4 hereof3.1), and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “AS IS, WHERE IS” condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Buyer Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by SellerSeller under any of the terms of this Agreement, other than reimbursement of Purchaser’s actual and documented out-of-pocket costs and expenses as described above. Notwithstanding In no event shall Seller be liable to Purchaser for any provisions in this Agreement to the contrarypunitive, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)speculative or consequential damages.

Breach by Seller. In A Seller shall be in default hereunder if: (a) any representation or warranty made by such Seller is or becomes false in any material respect; or (b) such Seller fails to cure (within the event time frame set forth below) any breach of any obligation of such Seller under this Agreement. If a Seller defaults on any provision hereof, Buyer, as a condition precedent to the Close exercise of Escrow and the transactions contemplated hereby do not occur its remedies or termination of this Agreement as provided herein by reason to such Seller, shall be required to give such Seller written notice of the same. Such Seller shall have 7 days from the receipt of such notice to cure the default. If such Seller timely cures the default, the default of Sellershall be deemed waived and this Agreement shall continue in full force and effect as to such Seller and its Property. If such Seller fails to timely cure such default, Buyer may elect, as the sole and exclusive remedy of Buyer, to at Buyer’s option, either may: (i) terminate this Agreement as to such Seller and receive the Deposit from Escrow Holderits Property, and in which event (A) if such event each party shall be released from any liability default is due to the other party hereunder, other than with respect to those obligations that expressly survive termination a Seller’s actions or breach of this Agreement, or such Seller shall reimburse Buyer for Buyer’s reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement and the transactions contemplated hereby and Buyer’s due diligence, up to a maximum of the applicable Expense Reimbursement Amount, (B) the applicable Property Deposit, less the Independent Contract Consideration (which Escrow Agent shall deliver to such Seller), shall be returned to Buyer, (C) such Seller shall pay any cancellation charges of Escrow Agent and Title Company applicable to such Seller’s Property, (D) Buyer and such Seller shall be discharged from all duties and performance hereunder as to one another, except for any obligations which by their terms survive any termination of this Agreement and (E) this Agreement shall remain in full force and effect as to all other Properties; OR (ii) enforce pursue specific performance of such Seller’s obligation obligations hereunder (without the necessity of proving irreparable harm or posting any security) including to convey the such Seller’s Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any action taken by such Seller, such Seller shall reimburse Buyer for Buyer’s direct and actual damages arising from such Seller’s default by Seller. Notwithstanding any provisions in (but not consequential damages which Seller specifically waives), including the Applicable Share of Buyer’s reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement to and the contrary, Sellertransactions contemplated hereby and Buyer’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)due diligence.

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except for a Purchaser default, or the Close exercise of Escrow and any right to terminate this Agreement that Seller has under the transactions contemplated hereby do not occur express terms of this Agreement, Purchaser shall be entitled as provided herein by reason of the default of Seller, Buyer may elect, as the its sole and exclusive remedy of Buyerremedies, at law or in equity, to either (i) terminate this Agreement and receive a refund of the Deposit from Escrow HolderXxxxxxx Money, and in such event each thereafter neither party shall be released from have any liability to the other party hereunder, further obligations hereunder other than with respect to those obligations that expressly survive termination of this Agreement, the Surviving Obligations; or (ii) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate obligations under this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofAgreement; provided, however, Buyer that if Seller’s failure to consummate this Agreement is due to Seller’s Wrongful Acts (defined below) and Purchaser elects to terminate this Agreement, or the remedy of specific performance of Seller’s obligations under this Agreement is not available, then Purchaser shall receive a refund of the Xxxxxxx Money and Seller shall reimburse Purchaser the amount of Purchaser’s actual costs and expenses incurred in connection with (a) negotiating this Agreement, (b) conducting its due-diligence inspection and analysis of the Property, and (c) obtaining (or attempting to obtain) debt and/or equity financing for Purchaser’s acquisition of the Property which in the aggregate shall not exceed One Hundred Thousand and No/100 Dollars ($100,000.00) (“Purchaser’s Costs”), within ten (10) days after submission by Purchaser to Seller of invoices reasonably supporting such costs. It shall be a condition to Purchaser’s right to seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions obtain specific performance that that Purchaser must file suit for specific performance within ninety (90) days following the date provided in this Agreement for Closing (failing which Purchaser shall have waived the right to the contrarydo so). As used in this Agreement, “Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)Wrongful Act” means an intentional affirmative act or failure to act by Seller constituting fraud, gross negligence or willful misconduct.

Breach by Seller. In If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If Seller fails to timely cure such default, Buyer, at Buyer’s option, either may: (i) terminate this Agreement, in which event (A) Seller shall reimburse Buyer for Buyer’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the Close negotiation of Escrow this Agreement and the transactions contemplated hereby do not occur as provided herein by reason and Buyer’s due diligence, up to a maximum of $50,000, (B) the default of Deposit, less the Independent Contract Consideration (which Escrow Agent shall deliver to Seller), Buyer may elect, as the sole and exclusive remedy of shall be returned to Buyer, to (iC) terminate this Agreement Seller shall pay any cancellation charges of Escrow Agent and receive the Deposit from Escrow HolderTitle Company, and in such event each party (D) both parties shall be released discharged from any liability to the other party all duties and performance hereunder, other than with respect to those except for any obligations that expressly which by their terms survive any termination of this Agreement, or ; OR (ii) enforce pursue and obtain specific performance of Seller’s obligation obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default action taken by Seller. Notwithstanding any provisions in , Seller shall reimburse Buyer for Buyer’s direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement to and the contrary, Sellertransactions contemplated hereby and Buyer’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)due diligence.

Breach by Seller. In If Seller fails to consummate this Agreement for any reason, except due to: (a) Buyer’s default or (b) a termination of this Agreement by Buyer or Seller pursuant to a right to do so under the event the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may elect, as the sole and exclusive remedy of Buyer, to shall be entitled to: (i) terminate this Agreement waive such failure and receive the Deposit from Escrow Holder, and in such event each party shall be released from any liability proceed to the other Closing with no reduction in the Purchase Price; provided, however, that this provision will not limit Buyer’s right to receive reimbursement for attorney’s fees pursuant to Section 9.10 below in connection with any legal proceedings instituted by either party hereunder, other than or Escrow Holder with respect to those obligations that expressly survive termination the enforcement of this Agreement, nor waive or affect Seller’s indemnity obligations under this Agreement or Buyer’s rights to enforce those indemnity obligations, nor waive or affect any of Seller’s other obligations under this agreement to be performed after the Closing or Buyer’s rights to enforce those obligations; (ii) enforce pursue within six (6) months of Closing an action for specific performance of Seller’s obligation to cause Seller to convey the Property to Buyer hereunder. Buyer shall be deemed pursuant to have elected to the terms and conditions of this Agreement; or (iii) terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver by notice to Seller written notice and Escrow Holder to that effect, to recover the full amount of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofXxxxxxx Money and all earnings thereon and Seller; provided, however, Buyer shall seek only actual damages and not consequential, special however in the event of a willful or indirect damages as a result of any intentional default by Seller. Notwithstanding any provisions , Seller shall also pay Buyer all of Buyer’s actual and reasonable third party out of pocket costs associated with its investigation of the Property and negotiation of the transaction contemplated in this Agreement Agreement, in an amount not to exceed $50,000.00. Buyer expressly waives its rights to seek damages other than those stated in this Section 8.1 in the contrary, event of Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)default hereunder.

Breach by Seller. In If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 5 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If Seller fails to timely cure such default, Buyer, at Buyer’s option, either may: (i) terminate this Agreement, in which event (A) Seller shall reimburse Buyer for Buyer’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the Close negotiation of Escrow this Agreement and the transactions contemplated hereby do not occur as provided herein by reason and Buyer’s due diligence, up to a maximum of $50,000, (B) the default of Deposit, less the Independent Contract Consideration (which Escrow Agent shall deliver to Seller), Buyer may elect, as the sole and exclusive remedy of shall be returned to Buyer, to (iC) terminate this Agreement Seller shall pay any cancellation charges of Escrow Agent and receive the Deposit from Escrow HolderTitle Company, and in such event each party (D) both parties shall be released discharged from any liability to the other party all duties and performance hereunder, other than with respect to those except for any obligations that expressly which by their terms survive any termination of this Agreement, or ; OR (ii) enforce pursue and obtain specific performance of Seller’s obligation obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default action taken by Seller. Notwithstanding any provisions in , Seller shall reimburse Buyer for Buyer’s direct and actual damages, including, without limitation, all of its out-of-pocket costs and expenses(including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement to and the contrary, Sellertransactions contemplated hereby and Buyer’s maximum liability under this Section 5.12 shall due diligence (but not exceed Two Hundred Fifty Thousand Dollars ($250,000.00consequential damages).

Breach by Seller. In the event the Close of Escrow and that Seller shall fail to consummate the transactions contemplated hereby by this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do not occur as provided herein by reason of so under the default of Sellerprovisions hereof, Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to remedies may either (i) terminate this Agreement Agreement, receive a refund of the Xxxxxxx Money and receive the Deposit from Escrow HolderAdditional Deposit, if any, and pursue Seller for actual damages, provided, however, in such no event each party shall Purchaser be released from any liability entitled to a recovery or claim against Seller in excess of an amount equal to the other party hereunderamount of the Xxxxxxx Money and Additional Deposit, other than with respect if any, Seller shall not be liable to those obligations that expressly survive termination of this AgreementPurchaser for any punitive, speculative or consequential damages or (ii) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate 's obligations under this Agreement Agreement; provided, however that (as provided in subsection (ia) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action must be filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Datedefault by Seller, (b) Purchaser is not in default under this Agreement, (c) Purchaser has tendered the Purchase Price, less Purchaser's good faith reasonable estimate of proration credits that would be credited against the Purchase Price, to the Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (d) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and further provided that notwithstanding anything to the contrary contained herein if Purchaser seeks specific performance under this Agreement Purchaser agrees to accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any right or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller and give Seller ten (10) days thereafter in which to cure said default, if Seller so elects. In no event whatsoever shall Purchaser file any instrument of record against title to the Property until it has complied with the provisions of (a) through (d) above. Notwithstanding any of the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow foregoing to the extent such claim expressly survives termination or Closing as more fully set forth contrary, in Section 6.4 hereof; providedno event whatsoever, however, Buyer shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by Seller. Notwithstanding Seller under any provisions in of the terms of this Agreement except as provided for herein. In no event shall Seller be liable to Purchaser for any punitive, speculative or consequential damages. If for any reason the contraryremedy of specific performance is denied Purchaser following all available court proceedings, Seller’s maximum or Purchaser discontinues the action for specific performance, then all funds deposited by Purchaser pursuant to (c) above shall be returned to Purchaser and the Seller shall then be released from any further liability to Purchaser in reference to this Contract but Purchaser may be liable to Seller for costs or damages as provided under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)Agreement or by law.

Breach by Seller. In If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 5 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If Seller fails to timely cure such default, Buyer, at Buyer’s option, either may: (i) terminate this Agreement, in which event (A) the Close Deposit shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow Agent and Title Company, and (C) both parties shall be discharged from all duties and performance hereunder, except for any obligations which by their terms survive any termination of this Agreement; OR (ii) pursue and obtain specific performance of Seller’s obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer as a result of any action taken by Seller, Seller shall reimburse Buyer for Buyer’s direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement and the transactions contemplated hereby do not occur as provided herein by reason of the default of Seller, Buyer may elect, as the sole and exclusive remedy of Buyer, to (i) terminate this Agreement and receive the Deposit from Escrow Holder, and in such event each party shall be released from any liability to the other party hereunder, other than with respect to those obligations that expressly survive termination of this Agreement, or (ii) enforce specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)due diligence.

Breach by Seller. In the event of a default by Seller hereunder, Purchaser shall give Seller written notice of such default (not more than ten (10) days after Purchaser acquires knowledge of such default; provided no notice shall be required for Seller’s failure to proceed to Closing on the Close Closing Date) and if Seller has not cured such event of Escrow default within ten (10) days following Seller’s receipt of such default notice (or such additional time as reasonably necessary in the event such default cannot be cured within such ten (10) day period and Seller promptly commences to cure the transactions contemplated hereby do not occur same and diligently prosecutes the same to completion) (and to the extent the Closing Date is less than ten (10) days after such notice, the Closing Date will be re-scheduled to the next business day immediately following the expiration of such cure period), then Purchaser as provided herein by reason of the default of Seller, Buyer may elect, as the its sole and exclusive remedy of Buyer, shall be entitled to either: (i) seek specific performance of this Agreement, but not damages, in a court of competent jurisdiction (provided an action is commenced no later than 60 days after Purchaser became aware of such default), or (ii) terminate this Agreement and receive back the Deposit from Escrow Holder, plus any accrued interest and in such event each party the parties shall be released from any liability thereafter have no further rights or obligations pursuant to the other party hereunder, other than with respect to this Agreement except those obligations that expressly survive termination such termination. If Purchaser fails to give Seller notice of this Agreementany such default and proceeds with Closing, then Purchaser shall have waived its rights to assert any claim for the applicable default. The parties agree that Purchaser’s actual damages would be difficult or (ii) enforce impossible to determine if Seller defaults and the ownership of the Property has a unique value to Purchaser which is not adequately capable of being compensated through the payment of damages. Therefore, it is specifically acknowledged and agreed that Purchaser shall be entitled to the remedy of specific performance in connection with any such default, in the event Purchaser elects to pursue such remedy as herein provided. Notwithstanding any of the foregoing, in the event of a willful default by Seller’s obligation , said willful default being solely defined as Seller refusing to convey the Property to Buyer hereunder. Buyer Purchaser by the Closing Date in accordance with this Agreement or any willful default by Seller of Section 7 of this Agreement, Purchaser shall be deemed entitled to have elected the following remedies in addition to terminate this Agreement the available remedy of specific performance: (as provided in subsection (ia) above) if Buyer fails to deliver to Seller written notice receive the return of its intent Deposit plus any accrued interest from the Escrow Agent, and (b) upon the presentment of the appropriate documentation to file Seller, receive from Seller Purchaser’s Out-of-Pocket Expenses, up to a cause of action for specific performance against Seller on or before maximum amount not to exceed One Hundred Fifty Thousand ($150,000.00) Dollars, provided that Purchaser commences any such claim described above within thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)willful default.

Breach by Seller. In the event the Close If Seller shall fail to perform any of Escrow and the transactions contemplated hereby do not occur as provided herein by reason its material obligations under this Agreement or any of the default Other Purchase Agreements, in any material respect, prior to Closing, and Seller fails to cure such breach within ten (10) Business Days after Seller’s receipt of Sellerwritten notice from Buyer specifying such default, as its sole and exclusive remedy, Buyer may elect, as the sole and exclusive remedy of Buyer, to either (i) terminate this Agreement and the Other Purchase Agreements and receive a refund of the Deposit from Escrow HolderDeposit, in which event Seller shall pay to Buyer its actual third party out-of-pocket costs and expenses incurred in such event each party shall be released from any liability connection with the transactions contemplated by this Agreement and the Other Purchase Agreements in an amount not to the other party hereunder, other than with respect to those obligations that expressly survive termination of this Agreement, exceed $750,000 or (ii) enforce pursue the remedy of specific performance of Seller’s obligation obligations under this Agreement, Seller hereby waiving any defense it may have to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of an action for specific performance against Seller on or before thirty (30) days after written notice based upon the adequacy of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereoflaw; provided, however, that (A) Buyer shall seek only be entitled to the remedy of specific performance if any suit for specific performance is filed within ninety (90) days after Seller’s failure to cure the applicable breach within ten (10) Business Days as aforesaid, and (B) if Buyer seeks specific performance under this Agreement, Buyer agrees to accept the Ownership Interests and each Owner’s assets, including, without limitation, the Properties, in accordance with the terms of this Agreement; provided further, that if Seller wrongfully sells a Property or any Ownership Interests in any Owner to a bona fide third party purchaser prior to Closing, such that the remedy of specific performance is not available, then, in addition to the refund of the Deposit and Seller’s payment to Buyer of its actual third party out-of-pocket costs and expenses incurred in connection with the transactions contemplated by this Agreement and the Other Purchase Agreements in an amount not to exceed $750,000, Seller shall pay to Buyer its actual damages and as a result of such breach in an amount not consequentialto exceed One Million Seven Hundred Fifty Thousand Dollars ($1,750,000). Notwithstanding any of the foregoing to the contrary, special or indirect in no event whatsoever, shall Buyer have the right to seek money damages of any kind as a result of any default by Seller. Notwithstanding Seller under any provisions of the terms of this Agreement other than as expressly provided in this Agreement Agreement, and in no event shall Seller be liable to Buyer for any punitive, speculative or consequential damages. The foregoing waiver shall not apply to claims based upon breach of representations and warranties, which are governed instead by the contraryprovisions of Section 24(c) hereof, or any claim for indemnification governed by Section 22 or Section 23(e)(i) or any of Seller’s maximum liability post-closing obligations under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)any Transaction Document.

Breach by Seller. In If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If Seller fails to timely cure such default, Buyer, at Buyer’s option, either may: (i) terminate this Agreement, in which event (A) Seller shall reimburse Buyer for Buyer’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the Close negotiation of Escrow this Agreement and the transactions contemplated hereby do not occur as provided herein by reason and Buyer’s due diligence, up to a maximum of $100,000, (B) the default of Deposit, less the Independent Contract Consideration (which Escrow Agent shall deliver to Seller), Buyer may elect, as the sole and exclusive remedy of shall be returned to Buyer, to (iC) terminate this Agreement Seller shall pay any cancellation charges of Escrow Agent and receive the Deposit from Escrow HolderTitle Company, and in such event each party (D) both parties shall be released discharged from any liability to the other party all duties and performance hereunder, other than with respect to those except for any obligations that expressly which by their terms survive any termination of this Agreement, or ; OR (ii) enforce pursue and obtain specific performance of Seller’s obligation obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default action taken by Seller. Notwithstanding any provisions in , Seller shall reimburse Buyer for Buyer’s direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement to and the contrary, Sellertransactions contemplated hereby and Buyer’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)due diligence.

Breach by Seller. In If Seller is in default of its obligations in this Agreement, Buyer, at Buyer’s option, either may: (i) terminate this Agreement, in which event (A) Seller shall reimburse Buyer for Buyer’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the event the Close negotiation of Escrow this Agreement and the transactions contemplated hereby do not occur as provided herein by reason and Buyer’s due diligence, up to a maximum of $75,000, (B) the default of Deposit, less the Independent Contract Consideration (which Escrow Agent shall deliver to Seller), Buyer may elect, as the sole and exclusive remedy of shall be returned to Buyer, to (iC) terminate this Agreement Seller shall pay any cancellation charges of Escrow Agent and receive the Deposit from Escrow HolderTitle Company, and in such event each party (D) both parties shall be released discharged from any liability to the other party all duties and performance hereunder, other than with respect to those except for any obligations that expressly which by their terms survive any termination of this Agreement, or ; OR (ii) enforce pursue and obtain specific performance of Seller’s obligation obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default action taken by Seller. Notwithstanding any provisions in , Seller shall reimburse Buyer for Buyer’s direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement to and the contrarytransactions contemplated hereby and Buyer’s due diligence, Seller’s maximum liability under this Section 5.12 provided that such reimbursement shall not in no event exceed Two Hundred Fifty Thousand Dollars ($250,000.00)150,000.

Breach by Seller. In the event that Seller shall fail to consummate the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason sale of the Property pursuant to this Agreement for any reason (other than Purchaser’s default or a termination of Sellerthis Agreement by Purchaser or Seller pursuant to a right to do so under the provisions hereof), Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive (i) a refund of the Deposit Xxxxxxx Money and (ii) if such failure to close the transactions contemplated herein results from Escrow Holder, and in such event each party shall be released from any liability a breach Renaissance Chicago Downtown Hotel or default of Seller hereunder (as opposed to the other party hereundermere failure of Purchaser Closing Condition not due to a breach or default of Seller hereunder or the mere failure of Seller’s Closing Condition), other than reimbursement of Purchaser’s actual, reasonable out-of-pocket costs and expenses incurred in connection with respect to those obligations that expressly survive termination of the transactions contemplated by this Agreement, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate obligations under this Agreement (as provided in subsection Agreement; provided, however, that (i) abovePurchaser shall only be entitled to such remedy if (A) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action is filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Date. Notwithstanding the foregoingdefault by Seller, nothing contained herein shall limit Buyer’s remedies at law or (B) Purchaser is not in equitydefault under this Agreement, as and (C) Purchaser has furnished ten (10) days prior written notice to claims first arising following the Close Seller of Escrow its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the extent contrary contained herein, if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its “AS IS, WHERE IS” condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofdefault within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Buyer Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Except as expressly provided in this Agreement (including, without limitation, Section 10.10 hereof), in no event whatsoever shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by SellerSeller under any of the terms of this Agreement. Notwithstanding In no event shall Seller be liable to Purchaser for any provisions in this Agreement to the contrarypunitive, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)speculative or consequential damages.

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser’s default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser shall be entitled, as the its sole and exclusive remedy of Buyerremedy, to (i) terminate this Agreement and receive the Deposit from Escrow Holder, and in such event each party shall be released from any liability to the other party hereunder, other than with respect to those obligations that expressly survive termination of this Agreement, or (ii) enforce specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, to either (i) terminate this Agreement, and neither party shall have any further right or obligation hereunder other than the Surviving Obligations; or (ii) pursue the remedy of specific performance of Seller’s obligations under this Agreement. Notwithstanding the foregoing, if Seller willfully defaults in its obligation to sell and convey the Property to Purchaser pursuant to this Agreement and the remedy of specific performance as provided in clause (b) above is not available to claims first arising following Purchaser because Seller has sold or conveyed the Close Property to another party, then Purchaser’s sole remedy shall be to proceed pursuant to clause (a) above and Purchaser may recover from Seller the actual out-of-pocket expenses incurred by Purchaser in connection with the transaction described in this Agreement, including, without limitation, expenses paid (A) to Purchaser’s attorneys in connection with negotiation of Escrow this Agreement and matters related thereto, (B) to any prospective lender as an application or commitment fee, rate lock or other non-refundable fee, and (C) to unrelated and unaffiliated third party consultants in connection with the extent performance of examinations, inspections and/or investigations pursuant to this Agreement. If specific performance is not available as described in the immediately preceding sentence, Seller shall pay to Purchaser all actual expenses, including reasonable attorneys’ fees actually incurred, incurred by Purchaser in such claim expressly survives termination or Closing specific performance action, and such expenses shall not be included as more fully an expense of Purchaser in determining Sellers’ liability to Purchaser in the event specific performance is not an available remedy as set forth in this Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller7.1. Notwithstanding any provisions provision in this Agreement Section 7.1 to the contrary, Seller’s maximum liability under in no event shall Seller be liable to reimburse Purchaser for costs and expenses in excess of $50,000.00 in the aggregate. The foregoing provision of this Section 5.12 7.1 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)survive the termination of this Agreement.

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive a refund of the Deposit from Escrow HolderXxxxxxx Money, and in such event each neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreementthe Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate 's obligations under this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofAgreement; provided, however, Buyer that (i) Purchaser shall only be entitled to such remedy if (A) any such suit for specific performance is filed within ninety (90) days after Purchaser becomes aware of the default by Seller, (B) Purchaser is not in default under this Agreement, (C) Purchaser is ready, willing and able to tender the Purchase Price to the Title Company in immediately available funds, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek only actual specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller's receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this SECTION 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek money damages and not consequential, special or indirect damages of any kind as a result of any default by SellerSeller under any of the terms of this Agreement, except in the event Purchaser prevails in its suit for specific performance pursuant to this SECTION 8.1, Purchaser shall also be entitled to pursue Seller for Purchaser's reasonable attorneys' fees and court costs incurred and directly relating to such lawsuit. Notwithstanding In no event shall Seller be liable to Purchaser for any provisions in this Agreement to the contrarypunitive, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)speculative or consequential damages.

Breach by Seller. In the event that Seller shall breach any of its obligations hereunder or shall fail to consummate this Agreement for any reason other than Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow provisions hereof, and if Purchaser is not then in default hereunder and is ready, willing and able to consummate this transaction, then Purchaser shall have the transactions contemplated hereby do right to pursue one, but not occur as provided herein by reason all of the default of Seller, Buyer may electfollowing, as the its sole and exclusive remedy of Buyer, to remedies: (i) the right to terminate this Agreement and receive a refund of the Deposit from Escrow Holder, and Xxxxxxx Money upon Purchaser's satisfaction of the requirements set forth in such event each party shall be released from any liability to the other party hereunder, other than with respect to those obligations that expressly survive termination Section 10.12 of this Agreement, or (ii) enforce specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver by giving written notice to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date and filing a lawsuit within one hundred twenty (120) days after the scheduled Closing Date, the right to seek specific performance of Seller's obligations to sell the Property in accordance with the terms of the Agreement. Notwithstanding In the foregoingevent Purchaser fails to give written notice to Seller within such 60-day period or file a lawsuit for specific performance within such 120-day period, nothing contained herein Purchaser shall limit Buyer’s remedies at law or be deemed to have elected the remedy of termination of this Agreement. If Purchaser enforces specific performance of Seller's obligations to sell the Property in equity, as to claims first arising following accordance with the Close terms of Escrow this Agreement Purchaser agrees that it shall accept a special warranty deed to the extent such claim expressly survives termination Property subject to the Permitted Encumbrances. In no event shall Seller be liable to Purchaser for any actual, punitive, exemplary, speculative, or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)other damages.

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive a refund of the Deposit from Escrow Holder, Xxxxxxx Money and in such event each neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreementthe Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate 's obligations under this Agreement (as provided in subsection Agreement; provided, however, that (i) abovePurchaser shall only be entitled to such remedy if (A) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action is filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Date. Notwithstanding default by Seller, (B) Purchaser is not in default under this Agreement, (C) Purchaser has tendered the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow Purchase Price to the extent Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofdefault within ten (10) days after Seller's receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Buyer Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this SECTION 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by SellerSeller under any of the terms of this Agreement. Notwithstanding any provisions the foregoing, solely in the event that the remedy of specific performance is not available to Purchaser as a result of Seller's conveyance of the Property to another third party, Purchaser shall have the right to terminate this Agreement and then pursue Seller for Purchaser's actual out-of-pocket costs as evidenced by bona fide paid invoices from third parties, provided, however, in no event shall such amount exceed $50,000.00 and in no event shall such amount include speculative, punitive or consequential damages. In no event shall Seller be liable to the contraryPurchaser for any punitive, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)speculative or consequential damages.

Breach by Seller. In the event that Seller shall fail to consummate this Agreement for any reason, except Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive a refund of the Deposit from Escrow HolderXxxxxxx Money, and in such event each neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreementthe Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate 's obligations under this Agreement (as provided in subsection Agreement; provided, however, that (i) abovePurchaser shall only be entitled to such remedy if (A) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action is filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Date. Notwithstanding default by Seller, (B) Purchaser is not in default under this Agreement, (C) Purchaser has tendered the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow Purchase Price to the extent Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofdefault within ten (10) days after Seller's receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Buyer Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this SECTION 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by SellerSeller under any of the terms of this Agreement. Notwithstanding any provisions the foregoing, solely in the event that the remedy of specific performance is not available to Purchaser as a result of Seller's conveyance of the Property to another third party, Purchaser shall have the right to terminate this Agreement and then pursue Seller for Purchaser's actual out-of-pocket costs as evidenced by bona fide paid invoices from third parties, provided, however, in no event shall such amount exceed $250,000.00 and in no event shall such amount include speculative, punitive or consequential damages. In no event shall Seller be liable to the contraryPurchaser for any punitive, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)speculative or consequential damages.

Breach by Seller. In the event that Seller shall default in any of its Article 6 obligations hereunder by failing to consummate this Agreement for any reason other than as a result of (i) Purchaser's default, or (ii) a termination of this Agreement by Purchaser or Seller pursuant to an express right to do so under the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerprovisions hereof, Buyer may electPurchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive a refund of the Deposit from Escrow HolderXxxxxxx Money (subject to Purchaser's delivery of the Reports to Seller), and in such event each neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreementthe Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate 's obligations under this Agreement (as provided in subsection Agreement; provided, however, that (i) abovePurchaser shall only be entitled to such remedy if (A) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action is filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Date. Notwithstanding default by Seller, (B) Purchaser is not in default under this Agreement, (C) Purchaser has tendered at least twenty percent (20%) of the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow Purchase Price to the extent Title Company in immediately available funds and the Title Company has acknowledged receipt of same, in writing, to Seller, and (D) Purchaser has furnished ten (10) days prior written notice to Seller of its intent and election to seek specific enforcement of this Agreement; and (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement and if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereofdefault within ten (10) days after Seller's receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against title to the Property; provided, however, Buyer Purchaser may file a lis pendens of this Agreement simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1. Notwithstanding any of the foregoing to the contrary, in no event whatsoever shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by SellerSeller under any of the terms of this Agreement. Notwithstanding In no event shall Seller be liable to Purchaser for any provisions in this Agreement to the contrarypunitive, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)speculative or consequential damages.

Breach by Seller. In Subject to Section 8.3 below, if Seller does not timely sell the event the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default Property to Purchaser in breach of Seller’s obligations under this Agreement, Buyer may elect, as the sole and exclusive remedy of Buyer, then (a) Purchaser shall be entitled to either (i) terminate pursue the remedy of specific performance of Seller’s obligations under this Agreement in accordance with applicable law, provided that Purchaser files in a court of competent jurisdiction and receive serves on Seller a complaint for a specific performance action within ninety (90) days of the Deposit from Escrow Holderdate on which Purchaser first becomes aware of Seller’s default, and except that, in such the event each party specific performance for any reason is not available, then Purchaser shall be released entitled to recover damages from any liability to the other party hereunder, other than with respect to those obligations that expressly survive termination of this AgreementSeller as described in Section 8.1(ii) below, or (ii) enforce specific performance terminate this Agreement, receive a refund of the Xxxxxxx Money, and pursue an action against Seller to recover damages incurred by Purchaser and/or any affiliates of Purchaser in connection with the transaction contemplated by this Agreement and (b) in addition to the foregoing remedies, if Purchaser is not in material breach of its obligations under this Agreement and Seller, directly or indirectly, sells the Property for a purchase price in excess of the Purchase Price within a period of one (1) year following the date of the above default by Seller (including by virtue of the direct or indirect transfer of ownership interests in Seller), then Seller shall be obligated to pay any such excess amount to Purchaser, less the escrow, title, closing, reasonable attorneys fees, and other reasonable and customary third party costs of such sale, in cash, as damages for Seller’s obligation default hereunder (the “Excess Sale Amount”). Anything to convey the Property contrary in any of the Sale Documents notwithstanding, to Buyer hereunder. Buyer the fullest extent permitted by applicable law, whether or not the Closing shall have occurred (I) under no circumstances shall Purchaser be entitled to any damages in excess of Three Hundred Fifty Thousand and no/100 Dollars ($350,000.00) (the “Damages Ceiling;” which Damages Ceiling shall not be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice include any portion of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing DatePunchlist Escrowed Funds), whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer that if Seller does not timely sell the Property to Purchaser in breach of Seller’s obligations under this Agreement and, further, the circumstances described in clause (b) of the immediately preceding paragraph shall seek only actual damages have occurred, the Damages Ceiling shall not limit the Excess Sale Amount and (II) Purchaser shall not assert, and Purchaser hereby waives and acknowledges that Purchaser shall have no claim against Seller on any theory of liability for, special, indirect, consequential, special or indirect punitive damages or lost profits (as a result opposed to direct, compensatory damages). The parties have read and understand the provisions of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 8.1 and by their signatures immediately below agree to be bound by its terms. The terms and provisions of this Section 8.1 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00).expressly survive Closing and the termination of this Agreement. SELLER: PURCHASER:

Breach by Seller. In If Seller (i) breaches any of its obligations hereunder to be performed by it in any material respects prior to the event Closing Date, or (ii) defaults in the Close performance of Escrow and any of its obligations to be performed by it in any material respects on the transactions contemplated hereby do not occur as provided herein by reason of the default of SellerClosing Date, Buyer may electPurchaser shall be entitled, as the its sole and exclusive remedy of Buyerremedy, at law or in equity, to either (i) terminate this Agreement and receive a refund of the Deposit from Escrow HolderXxxxxxx Money, and Seller shall reimburse Purchaser for all Pursuit Costs incurred by Purchaser in such event each connection with this transaction in an amount not to exceed Two Million Dollars ($2,000,000), whereupon neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreement, the Surviving Obligations; or (ii) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate obligations under this Agreement (as Agreement; provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action that any suit for specific performance against Seller on or before thirty must be brought within ninety (3090) days after written notice of termination from Seller or thirty (30) days after Seller’s default, to the originally scheduled Closing Dateextent permitted by law, whichever shall occur first, or having given Seller notice, fails Purchaser waiving the right to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Datebring suit at any later date. Notwithstanding the foregoing, nothing contained herein in the event Seller intentionally conveys any portion of the Property to a third party prior to the earlier of (x) the termination of this Agreement pursuant to the terms hereof or (y) ninety (90) days following the date that Closing is otherwise required to occur under this Agreement (provided no action for specific performance has then been initiated by Purchaser), thereby making the remedy of specific performance unavailable to Purchaser, Purchaser shall limit Buyer’s be permitted to pursue all other rights and remedies which may be available to it at law or in equity, as to claims first arising following the Close equity on account of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result breach of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability obligations herein. This Agreement confers no present right, title or interest in the Property to Purchaser, and Purchaser agrees not to file a lis pendens or other similar notice against the Property except in connection with the enforcement of its rights under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)8.1.

Breach by Seller. In If Seller defaults on any provision hereof, Buyer, as a condition precedent to the exercise of its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default shall be deemed waived and this Agreement shall continue in full force and effect. If Seller fails to timely cure such default, Buyer, at Buyer’s option, either may: (i) terminate this Agreement, in which event (A) Seller shall reimburse Buyer for Buyer’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the Close negotiation of Escrow this Agreement and the transactions contemplated hereby do not occur as provided herein by reason and Buyer’s due diligence, up to a maximum of $50,000.00, (B) the default of Seller, Buyer may elect, as the sole and exclusive remedy of Deposit shall be returned to Buyer, to (iC) terminate this Agreement Seller shall pay any cancellation charges of Escrow Agent and receive the Deposit from Escrow HolderTitle Company, and in such event each party (D) both parties shall be released discharged from any liability to the other party all duties and performance hereunder, other than with respect to those except for any obligations that expressly which by their terms survive any termination of this Agreement, or ; OR (ii) enforce pursue and obtain specific performance of Seller’s obligation obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property as provided herein. If Buyer elects to pursue specific performance pursuant to this Section 13.1 but specific performance as contemplated in this Section 13.1 is unavailable to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default action taken by Seller. Notwithstanding any provisions in , Seller shall reimburse Buyer for Buyer’s direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement to and the contrary, Sellertransactions contemplated hereby and Buyer’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)due diligence.

Breach by Seller. In the event the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason that Seller fails to comply with any of the material terms, conditions or obligations of this Agreement or otherwise fails to consummate this Agreement for any reason, except as a result of Purchaser’s default of Sellera material term, Buyer may electcondition or obligation of this Agreement or a termination of this Agreement pursuant to another right of Purchaser to do so under the provisions hereof, Purchaser, as the its sole and exclusive remedy of Buyer, to may either (ia) terminate this Agreement and receive a refund of the Deposit from Escrow HolderXxxxxxx Money in full together with reimbursement by Seller of Purchaser’s actual out-of-pocket third party costs incurred as part of Purchaser’s Investigations (the “Due Diligence Costs”), subject to a cap of $75,000 (the “Reimbursement Cap”), and in such event each neither party shall be released from have any liability to the other party hereunder, further right or obligation hereunder other than with respect to those obligations that expressly survive termination of this Agreementthe Surviving Obligations, or (iib) enforce pursue the remedy of specific performance of Seller’s obligation to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate obligations under this Agreement (as provided in subsection Agreement; provided, however, that (i) abovePurchaser shall only be entitled to such remedy if (A) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action any such suit for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action is filed within sixty (60) days after Purchaser becomes aware of the originally scheduled Closing Datedefault by Seller, and (B) Purchaser is not in default under this Agreement; (ii) notwithstanding anything to the contrary contained herein, Seller shall not be obligated to expend any sums to cure any defaults under this Agreement; and (iii) if Purchaser seeks specific performance under this Agreement, Purchaser agrees to accept the Property in its then “AS IS, WHERE IS” condition. Purchaser hereby agrees that prior to its exercise of any rights or remedies as a result of any defaults by Seller, Purchaser will first deliver written notice of said default to Seller, and if Seller so elects, Seller shall have the opportunity, but not the obligation, to cure such default within ten (10) days after Seller’s receipt of such notice. In no event whatsoever shall Purchaser file any instrument of record against the title of or to the Property, except that Purchaser may solely file a lis pendens against the Property (1) simultaneously with its filing of a suit for specific performance pursuant to this Section 8.1; or (2) if Purchaser is attempting to collect from Seller the Due Diligence Costs and/or the Lender Fees in accordance with this Section 8.1 or Section 6.6(e)(ii). Notwithstanding any of the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow foregoing to the extent such claim expressly survives termination or Closing as more fully set forth contrary, in Section 6.4 hereof; provided, however, Buyer no event whatsoever shall Purchaser have the right to seek only actual money damages and not consequential, special or indirect damages of any kind as a result of any default by SellerSeller under any of the terms of this Agreement. Notwithstanding In no event shall Seller be liable to Purchaser for, and Purchaser hereby expressly waives any provisions and all rights to seek, any punitive, speculative, special or consequential damages. The waivers set forth in this Agreement to Section 8.1 shall specifically survive the contrary, Seller’s maximum liability under Closing or the earlier termination of this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00).Agreement. PURCHASE AND SALE AGREEMENT Page 25 The Park at Kensington

Breach by Seller. In If Seller shall fail to fully and timely perform any of its obligations hereunder for any reason except Purchaser’s default, Purchaser shall have the event the Close of Escrow and the transactions contemplated hereby do not occur as provided herein by reason of the default of Sellerfollowing remedies, Buyer may elect, as the which shall be Purchaser’s sole and exclusive remedy remedies: (a) to terminate this Contract and receive a return of Buyerthe Exxxxxx Money Deposit and all interest accrued thereon or (b) to seek specific performance of Seller’s obligations hereunder. Notwithstanding the foregoing, if Seller defaults under this Contract because it is unable to convey the Property subject to only the Permitted Exceptions due to the existence of any other exception to title to the Property, then Purchaser’s only remedies shall be the right to (i) terminate this Agreement Contract and receive a return of the Exxxxxx Money Deposit from Escrow Holder, and in such event each party shall be released from any liability to the other party hereunder, other than with respect to those obligations that expressly survive termination of this Agreement, all interest accrued thereon or (ii) waive such exception or failure, as applicable, and proceed with the purchase contemplated herein. Purchaser expressly agrees that it shall have no right to seek damages or any other action at law or in equity, and waives its rights, if any, with respect to this transaction under any applicable law. Failure to give notice of intent to specifically enforce specific performance this Contract on or before the date which is thirty (30) days after the Outside Closing Date shall constitute an election by Purchaser to (and shall automatically) terminate this Contract, but only in the event of Seller’s obligation to convey the Property to Buyer hereunderbreach. Buyer Purchaser shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) Contract and receive a return of the Exxxxxx Money Deposit and all interest accrued thereon if Buyer Purchaser fails to deliver to Seller written notice of its intent to file a cause of action suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within date which is sixty (60) days after the originally scheduled Outside Closing Date. Notwithstanding the foregoingIn no event shall any damages, nothing contained herein shall limit Buyerrights or remedies for Seller’s remedies at law pre-Closing breach of this Contract be collectible, enforceable or in equity, available to Purchaser other than as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions provided in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)paragraph.

Breach by Seller. In Seller shall be in default hereunder if: (a) any representation or warranty made by Seller is false in any material respect when made or becomes false in accordance with (ii) of Section 6.13; or (b) Seller fails to cure (within the event time frame set forth below) any breach of any obligation of Seller under this Agreement. If Seller defaults on any provision hereof, Buyer, as a condition precedent to the Close exercise of Escrow and the transactions contemplated hereby do not occur as provided herein by reason its remedies or termination of this Agreement, shall be required to give Seller written notice of the same. Seller shall have 3 Business Days from the receipt of such notice to cure the default. If Seller timely cures the default, the default of Sellershall be deemed waived and this Agreement shall continue in full force and effect. If such default occurs prior to Closing and Seller fails to timely cure such default, Buyer may electBuyer, at Buyer’s option and as the sole and exclusive remedy of Buyer, to either may: (i) terminate this Agreement and receive Agreement, in which event (A) the Deposit from shall be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow HolderAgent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket due diligence expenses and attorneys fees incurred by Buyer to the date of such termination, not to exceed a total of $75,000.00, and in such event each party (D) Buyer shall be released discharged from any liability to the other party all duties and performance hereunder, other than with respect to those except for any obligations that expressly which by their terms survive any termination of this Agreement, ; or (ii) enforce pursue and obtain specific performance of Seller’s obligation obligations hereunder (without the necessity of proving irreparable harm or posting any security), including to convey the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur first, or having given Seller notice, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)herein.

Breach by Seller. In the event the Close If Seller fails to carry out or is in breach of Escrow and the transactions contemplated hereby do not occur as provided herein by reason any of the default terms or conditions of Seller, Buyer may elect, as the sole and exclusive remedy of this Contract or any other contract with Buyer, Seller is or becomes insolvent or unable to pay its debts as they fall due or Seller is subject to bankruptcy, pre-insolvency, insolvency or reorganisation proceedings (i) terminate this Agreement and receive including without limitation, the Deposit from Escrow Holderappointment of a mandataire ad hoc, and in such event each party shall be released from any liability to the other party hereundera procédure de conciliation, other than with respect to those obligations that expressly survive termination of this Agreementprocédure de sauvegarde, procédure de sauvegarde accélérée, procédure de redressement judiciaire or procédure de liquidation judiciaire), or (ii) enforce specific performance is dissolved or liquidated, whether voluntarily or involuntarily, or a receiver or trustee is appointed for all or a substantial part of Seller’s obligation to convey assets or Seller makes an assignment for the Property to Buyer hereunder. Buyer shall be deemed to have elected to terminate this Agreement (as provided in subsection (i) above) if Buyer fails to deliver to Seller written notice benefit of its intent to file a cause of action for specific performance against Seller on or before thirty (30) days after written notice of termination from Seller or thirty (30) days after the originally scheduled Closing Date, whichever shall occur firstcreditors, or having given any other proceedings analogous in nature or effect are instituted by or against Seller, then Buyer may without prejudice to its acceptance of the goods or any other rights or remedies that it may have under applicable law, terminate all or any part of this Contract and Seller noticeshall reimburse Buyer for any loss, fails to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law damage and expense incurred directly or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages indirectly as a result of any default by Seller. Notwithstanding any provisions in this Agreement such event of default, including but not limited to the contrarycost of procuring substitute goods from a third party and the amount of profit Buyer would have received for the goods under any resale contract. Any goods in Buyer’s hands on or after such termination may be returned by Buyer to Seller, may be held on Seller’s maximum liability account or may be disposed of by Buyer for the account of Seller at a price and under such circumstances which Buyer deems reasonable, all at Seller’s expense and risk. Buyer may refuse to accept any subsequent delivery of goods which Xxxxxx attempts to make under the Purchase Confirmation on or after such termination. Whenever Buyer shall be entitled to damages under any term of this Section 5.12 Contract, such damages shall not exceed Two Hundred Fifty Thousand Dollars include all liabilities, costs, expenses, damages and losses ($250,000.00)including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Buyer.

Breach by Seller. In the event that Seller shall breach any of its obligations hereunder or shall fail to consummate this Agreement for any reason other than Purchaser's default or a termination of this Agreement by Purchaser or Seller pursuant to a right to do so under the Close provisions hereof, and if Purchaser is not then in default hereunder and is ready, willing and able to consummate this transaction, then, if Seller fails to cure such default with five (5) days after Purchaser gives Seller written notice of Escrow and such default, Purchaser shall have the transactions contemplated hereby do right to pursue one, but not occur as provided herein by reason all of the default of Seller, Buyer may electfollowing, as the its sole and exclusive remedy of Buyer, to remedies: (i) the right to terminate this Agreement and receive a refund of the Deposit from Escrow Holder, Xxxxxxx Money and any Extension Fee paid to Seller upon Purchaser's satisfaction of the requirements set forth in such event each party shall be released from any liability to the other party hereunder, other than with respect to those obligations that expressly survive termination Section 10.12 of this Agreement, or (ii) enforce by giving written notice to Seller within ninety (90) days after the scheduled Closing Date and filing a lawsuit within one hundred twenty (120) days after the scheduled Closing Date, the right to seek specific performance of Seller’s obligation 's obligations to convey sell the Property in accordance with the terms of the Agreement. In the event Purchaser fails to Buyer hereunder. Buyer give written notice to Seller within such 90-day period or file a lawsuit for specific performance within such 120-day period, Purchaser shall be deemed to have elected the remedy of termination of this Agreement. If Purchaser enforces specific performance of Seller's obligations to terminate sell the Property in accordance with the terms of this Agreement (as provided in subsection (i) above) if Buyer fails Purchaser agrees that it shall accept a special warranty deed to deliver the Property subject to the Permitted Encumbrances. In no event shall Seller written notice be liable to Purchaser for any actual, punitive, exemplary, speculative, or consequential, or other damages. In the event the remedy of its intent to file a cause of action for specific performance against is not available Purchaser because Seller on has intentionally conveyed the Property to a third party or before thirty (30) days after written notice intentionally and voluntarily encumbered the Property with a lien that cannot be released by applying the proceeds of termination from Seller or thirty (30) days after the originally scheduled Closing DatePurchase Price to be paid by Purchaser to Seller, whichever shall occur first, or having given Seller notice, fails Purchaser may seek recovery for its actual out-of-pocket due diligence costs of investigating the Property in an amount not to file a lawsuit asserting such cause of action within sixty (60) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Buyer’s remedies at law or in equity, as to claims first arising following the Close of Escrow to the extent such claim expressly survives termination or Closing as more fully set forth in Section 6.4 hereof; provided, however, Buyer shall seek only actual damages and not consequential, special or indirect damages as a result of any default by Seller. Notwithstanding any provisions in this Agreement to the contrary, Seller’s maximum liability under this Section 5.12 shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)50,000.00.