Common use of Default by Seller Clause in Contracts

Default by Seller. In the event the Close of Escrow and the consummation of the transactions herein contemplated do not occur by reason of any default by Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and as its sole and exclusive remedy, one (1) of the following remedies: (i) to terminate this Agreement in which event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreement.

Default by Seller. In If any of Sellers' representations and warranties contained herein shall not be true and correct on the event Contract Date and continuing thereafter through and including the Close of Escrow and the consummation Closing Date, or if any Seller fails to perform any of the transactions covenants and agreements contained herein contemplated do to be performed by such Seller within the time for performance as specified herein (including Seller's obligation to close), or if any of the Buyer's Conditions Precedent shall not occur by reason of any default by Sellerhave been satisfied, Buyer may elect either to exercise (i) terminate Buyer's obligations under this Agreement by written notice to Seller and Escrow Holder and as its sole and exclusive remedySellers, one (1) of the following remedies: (i) to terminate this Agreement in which event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled retain all rights and remedies available to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, it; or (ii) close, in which event Buyer may file an action for either or both of specific performance and damages to enforcecompel Sellers to cure all or any of such default(s), pursuein whole or in part, whereupon Buyer shall be entitled to deduct from the Consideration, the cost of such action and cure, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket all reasonable expenses actually incurred by Buyer in connection with the proposed purchase therewith, including, but not limited to, attorneys' fees of the Property, including with respect Buyer's counsel. Notwithstanding anything to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, contrary herein and in connection with addition to any other remedies of Buyer’s investigations , Buyer shall be entitled to recover actual (but not consequential) damages suffered by Buyer by reason of Seller's defaults hereunder and/or any delay occasioned thereby, including, without limitation, Buyer's Reasonable Costs. The remedies of Buyer set forth in this Section 20.1 shall be in addition to remedies otherwise applicable or provided in this Agreement or otherwise available to Buyer at law or in equity, including, without limitation, specific performance, it being understood that Buyer's rights and remedies under this Agreement prior shall always be non-exclusive and cumulative and that the exercise of one remedy or form of relief available to the termination Buyer hereunder shall not be exclusive or constitute a waiver of this Agreement by any other. Buyer; provided, however, in no event shall Seller be obligated 's remedies under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above Section 20.1 shall not constitute a default be limited by Seller under this AgreementSection 20.3.

Default by Seller. In the event the Close of Escrow and the consummation sale of the transactions herein contemplated do Property is not occur by reason consummated because of any the default by of Seller, Buyer may elect to exercise may, as its sole and exclusive remedy for such default, either (i) terminate this Agreement by written notice to Seller and Escrow Holder and as its sole and exclusive remedyHolder, one (1) of the following remedies: (i) to terminate this Agreement in which event the Xxxxxxx Money Deposit shall be immediately returned to Buyer (and Seller shall reimburse Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party reasonable out-of-pocket expenses actually incurred by Buyer solely in connection with this Agreement from the proposed purchase Effective Date until notice of Seller’s default (the Property“Reimbursable Costs”), including with respect not to the negotiation exceed Fifteen Thousand and preparation No/100 Dollars ($15,000,00) (which reimbursement shall be subject to Buyer providing evidence to Seller in reasonable detail of Buyer’s Reimbursable Costs, not to exceed Fifteen Thousand and No/100 Dollars ($15,000.00)), or (ii) seek to enforce specific performance of this Agreement, In the event Seller interferes with the release of the Xxxxxxx Money Deposit to Buyer, then Seller shall be liable for all reasonable attorneys’ fees, fees and other costs and expenses which Buyer may incur in connection with Buyer’s investigations under this Agreement prior to the termination enforcement of this Agreement by Section 16.1. Except for the return of the Xxxxxxx Money Deposit and Buyer; provided’s Reimbursable Costs as provided above, however, Seller shall in no event shall Seller be obligated under this Agreement liable to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in any actual, punitive, speculative, consequential or other damages. Notwithstanding the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). foregoing, nothing contained herein shall limit the remedies Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts shall have to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by enforce any rights it has against Seller under this Agreementthe indemnity provisions of Sections 13 and 34.

Default by Seller. In the event the Close of Escrow and the consummation Closing of the transactions purchase and sale transaction provided for herein contemplated do does not occur as herein provided by reason of any default by of Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and Purchaser may, as its Purchaser's sole and exclusive remedy, one elect by notice to Seller within ten (110) Business Days following the scheduled Closing Date, either of the following remediesfollowing: (ia) terminate this Agreement, in which event Purchaser will receive from the Title Company the Xxxxxxx Money Deposit, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of the Agreement, and in either event, Purchaser hereby waives all other remedies, including without limitation, any claim against Seller for damages of any type or kind including, without limitation, consequential or punitive damages. Failure of Purchaser to make the foregoing election within the foregoing ten (10) Business Day period shall be deemed an election by Purchaser to terminate this Agreement in which event and receive from the Title Company the Xxxxxxx Money shall be returned to Buyer (Deposit, whereupon Seller and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall Purchaser will have any no further rights, obligations, rights or liabilities obligations under this Agreement Agreement, except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of Termination Surviving Obligations. Notwithstanding the foregoing, nothing contained in this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, howeverSection 13.1 will limit Purchaser's remedies at law, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (equity or as herein provided in the aggregate) in excess event of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default breach by Seller under this Agreementof any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination.

Default by Seller. In the event the Close of Escrow and the consummation of the transactions herein contemplated do not occur by reason If Seller shall be in default of any material obligation, representation or warranty under this Agreement and such default by Seller, Buyer may elect to exercise by is not cured or remedied within thirty (30) days after receipt of written notice thereof given by Purchaser to Seller and Escrow Holder and as its sole and exclusive remedy(except in regard to Seller’s obligation to deliver the Deed at Closing in regard to which Seller shall only be entitled to ten (10) business days notice), one (1) of the following remedies: at Purchaser’s election, Purchaser shall either (i) to terminate this Agreement in which event and receive the Xxxxxxx Money Deposit (including the interest thereon) from the Escrow Agent and Seller shall be returned to Buyer (and Buyer shall also be entitled to recover Buyerpay all of Purchaser’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party reasonable out-of-pocket expenses actually incurred in connection with this Agreement, including reasonable legal fees paid by Buyer Purchaser in connection with the proposed purchase preparation and negotiation of the Propertythis Agreement, including up to a maximum of Fifty Thousand and No/100 Dollars ($50,000.00) and in such event Seller shall not have any liability whatsoever to Purchaser hereunder other than with respect to the negotiation and preparation of this AgreementSurviving Termination Obligations, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination or (ii) enforce specific performance of this Agreement by Buyer; providedof the obligations of Seller hereunder and/or, howeversubject to the limitations below in this subsection 13.1, to seek damages. Except as otherwise provided herein, nothing contained in this paragraph 13.1 shall limit Purchaser’s remedies at law or in equity, as to the Surviving Termination Obligations. Notwithstanding anything to the contrary in the foregoing, Purchaser shall only be entitled to pursue an action for actual damages in the event of a Seller misrepresentation, failure or default if the failure, default or misrepresentation renders specific performance inadequate or unavailable. Seller shall in no event shall Seller be obligated under this Agreement to reimburse Buyer responsible for Buyer’s Reimbursable Due Diligence Expenses (or liable for any consequential, special or indirect, speculative or punitive damages in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreementany actions.

Default by Seller. In the event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default or the Close permitted termination of Escrow and this Agreement by Seller or Purchaser as herein expressly provided or in the consummation event of the transactions herein contemplated do not occur by reason of any a material Seller default by Sellerprior to Closing, Buyer may elect to exercise by written notice to Seller and Escrow Holder and Purchaser shall be entitled, as its sole and exclusive remedy, one either (1) of the following remedies: (ia) to terminate this Agreement in which event receive the return of the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither reimbursement from Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party all out-of-pocket expenses actually reasonably incurred by Buyer Purchaser in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior (not to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses exceed One Hundred Thousand and No/100 Dollars ($100,000.00) in the aggregate), which receipt shall operate to terminate this Agreement and release Seller from any and all liability hereunder except that this provision shall not limit the indemnification obligations of Seller contained in Section 8.1 or the obligations of Seller under Section 11.2, or (b) in excess to enforce specific performance of Seventy-Five Thousand Dollars Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and 00/100 ($75,000.00)agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Buyer acknowledges and agrees that Except as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth above in Sections 10.1.5this Section 6.2 and in the last sentence of this Section 6.2, 10.1.11Purchaser expressly waives its rights to seek damages in the event of Seller’s default hereunder. Purchaser shall be deemed to have elected to terminate this Agreement under clause (a) above if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or 10.1.12 above before sixty (60) days following the Closing Date. Nothing in this Section 6.2 shall not constitute be construed as a default by Seller under this Agreementwaiver of Purchaser’s rights and remedies relating to a breach of Seller’s representations or warranties or for a breach of any post-Closing obligations of Seller.

Default by Seller. In the event the Close If Seller fails to perform any obligation of Escrow Seller under this Agreement prior to or at any Closing and the consummation does not cure such failure (a) within five (5) Business Days after receipt of the transactions herein contemplated do written notice from Buyer asserting such failure, if Seller fails to timely deliver Closing Documents or authorize Closing if and when required of Seller for Closing to occur under this Agreement, or (b) within fifteen (15) Business Days after receipt of written notice from Buyer asserting such failure, if Seller fails to perform any other obligation of Seller (any such failure, if not occur cured within such period, being a “Seller Default”), then Buyer will elect by reason of any default by Seller, Buyer may elect to exercise by giving written notice to Seller and Escrow Holder and Agent within thirty (30) days after the occurrence of such Seller Default, as its Buyer’s sole and exclusive remedyremedy against Seller, one (1) of the following remedies: either to (i) to terminate this Agreement Agreement, in which event Buyer shall receive a return of the Xxxxxxx Money Deposit, Seller shall reimburse Buyer for the actual, reasonable out-of-pocket third-party costs, not to exceed Three Million Seven Hundred Eighty Thousand Dollars ($3,780,000.00) in the aggregate (which amount shall be returned reduced in the same proportion as any reduction to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expensesthe Purchase Price following designation of any Site or Sites as Excluded Sites), incurred by Buyer in performing due diligence for the transaction contemplated by this Agreement, and thereafter except for Obligations Surviving Termination, neither Seller nor Buyer shall of the Parties will have any further rights, obligations, liability or liabilities obligation under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the terminationAgreement, or (ii) to enforcebring a suit for specific performance against Seller to compel Seller to convey the Property to Buyer as required under this Agreement; provided, pursuehowever that as a condition precedent to Buxxx’s pursuit of any action for specific performance, Buyer (x) must have fully and timely performed all of Buyer’s obligations and made all deliveries (other than the delivery of the balance of the Purchase Price) required to be performed or delivered on or before the Closing Date, (y) must maintain the full Deposit in escrow until and during the pendency of such action, and seek (z) must demonstrate to the court Buyer’s ability to fund on the Closing Date (and upon any subsequent award of specific performance of such conveyance) the full amount of the Purchase Price. Buyer shall be deemed to have elected to terminate this Agreement within ninety (90as provided in Section 6.1(i) above) if Buyer does not deliver to Seller written notice of Buyer’s intent to file a cause of action for specific performance against Seller on or before sixty (60) days after such Seller Default, or having timely given Seller such notice, fails to file and serve Seller with a lawsuit asserting such cause of action within thirty (30) days after such defaultnotice. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer Unless otherwise expressly stated in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ feesBuyer specifically waives all other rights and remedies, and including, without limitation, the right to damages other than the reimbursement of costs as expressly set forth in connection with Buyer’s investigations under this Agreement prior clause (i) above; provided, that if Seller in bad faith conveys the Property after the Effective Date to the termination a third party in breach of this Agreement so as to frustrate the availability of the remedy of specific performance, then Buyer shall have the right to pursue a claim against Seller for actual damages caused to Buyer by Buyer; providedsuch intentional breach of Seller, however, in no event shall Seller be obligated under this Agreement subject to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions Maximum Amount set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this AgreementSection 6.3(b).

Default by Seller. In If the event the Close of Escrow and the consummation of the transactions transaction herein contemplated do provided shall not occur be closed by reason of Seller’s default under this Agreement or the failure of satisfaction of the conditions benefiting Buyer under Section 10.B. hereof or the termination of this Agreement in accordance with Sections 4, 5 or 7 hereof, then the Deposit shall be returned to Buyer, and neither party shall have any default further obligation or liability to the other (subject to any provisions that expressly survive termination hereunder); provided, however, if Buyer shall have fully performed its material obligations hereunder and shall be ready, willing and able to close, and the transactions hereunder shall fail to close solely by reason of Seller’s default, then as Buyer’s sole and exclusive remedy Buyer may elect to exercise by written notice to Seller either (a) terminate this Agreement and Escrow Holder and receive a return of the Deposit, or (b) specifically enforce this Agreement as its sole and exclusive remedy; provided, one (1) of however, that if specific enforcement is unavailable because Seller has sold the following remedies: (i) Property to another buyer, Buyer may terminate this Agreement in which event and receive a return of the Xxxxxxx Money shall be returned to Buyer (Deposit and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party its out-of-pocket costs and expenses actually incurred by Buyer in connection with the proposed purchase of the Property, (including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees), not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in aggregate, in investigating the Property, negotiating this Agreement and preparing for Closing from the Seller. Any action taken to specifically enforce this Agreement must be brought by Buyer no later than the one hundred twentieth (120th) day following Seller’s default, and in connection with Buyer’s investigations under failure to commence such action within such one hundred twenty (120) day period shall be deemed an election by Buyer to elect to terminate this Agreement prior to and receive a refund of the termination of this Agreement by Buyer; provided, however, Deposit in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses accordance with subpart (in the aggregatea) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreementabove.

Default by Seller. In If the event the Close transaction is not consummated as a result of Escrow and the consummation of the transactions herein contemplated do not occur by reason of any a default by Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and then Buyer, as its sole and exclusive remedyonly remedies hereunder, one (1) to the exclusion of the following remedies: all other potential remedies under this Agreement, at law or in equity, may either (i) to terminate this Agreement in which event by delivery of notice of termination to Seller, whereupon (A) the Xxxxxxx Money plus interest accrued thereon shall be immediately returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter (B) Seller shall pay to Buyer its Expense Reimbursement, in which case neither Seller nor Buyer Party shall have any further rights, obligations, rights or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to hereunder other than those rights and obligations which expressly survive the termination, termination of this Agreement; or (ii) to enforcecontinue this Agreement pending Buyer’s action for specific performance, pursueprovided, and seek however, that any such action for specific performance of this Agreement shall not include an action for damages and shall be filed and served by Buyer within ninety forty-five (9045) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase date which is the later of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to (x) the termination of this Agreement by Seller, or (y) the date on which Buyer has Actual Knowledge of the event or occurrence comprising the alleged default on the part of Seller, it being the intent of the Parties hereto that any failure of Buyer to meet the time deadline set for filing shall be deemed to be Buyer; provided’s election to waive and relinquish any rights to enforce specific performance of this Agreement. Notwithstanding anything to the contrary in this Agreement, however, (i) in no event shall Seller be obligated liable to Buyer in connection with any breach or default on the part of Seller under this Agreement for any special, exemplary, punitive or consequential damages, including, without limitation, loss of profits or revenue, interference with business operations, loss of tenants, lenders, investors, buyers, diminution in value of the Property, or inability to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses use the Property, and (in the aggregateii) in excess no event or circumstance shall any of Seventy-Five Thousand Dollars and 00/100 the members, partners, employees, representatives, officers, directors, agents, advisors, property management company, affiliated or related entities of Seller or Seller’s property management company ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the samecollectively, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by “Seller Parties”) have any personal liability under this Agreement.. Buyer’s Initials (c)

Default by Seller. In the event the Close of Escrow Closing and the consummation of the transactions herein contemplated hereby do not occur as herein provided by reason of any default by of Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and Purchaser may, as its Purchaser’s sole and exclusive remedy, one elect by notice to Seller within ten (110) Business Days following the Scheduled Closing Date, either of the following remediesfollowing: (ia) to terminate this Agreement Agreement, in which event Purchaser will receive from the Escrow Agent the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses)Deposit, together with all interest accrued thereon, and thereafter neither reimbursement from Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant of Purchaser’s reasonable out of pocket costs and expenses payable to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer third parties in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyertransaction; provided, however, in no event shall that the reimbursement by Seller be obligated to Purchaser under this Agreement shall not exceed Twenty-five Thousand Four Hundred Fourteen Dollars ($25,414) and the aggregate reimbursement by Seller to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in Purchaser under this Agreement and the aggregate) in excess of Seventy-Five Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars and 00/100 ($75,000.00750,000) (the “Reimbursement Cap”). Buyer acknowledges ; whereupon Seller and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, Purchaser will have no further rights or 10.1.12 above shall not constitute a default by Seller obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller’s obligation to execute the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller’s default hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money Deposit if Purchaser fails to file 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 following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 will limit Purchaser’s remedies at law, in equity or as herein provided in pursuing remedies of a breach by Seller of any of the Termination Surviving Obligations.

Default by Seller. In If the event the Close of Escrow and the consummation of the transactions transaction herein contemplated do provided shall not occur be closed by reason of any Seller’s default by Sellerunder this Agreement in a material respect or the failure of satisfaction of conditions benefiting Buyer under Section 4, Buyer may elect which is not cured or satisfied on or before the sooner to exercise by occur of December 28, 2006 or ten (10) days after written notice thereof by Buyer to Seller or the termination of this Agreement in accordance with Section 6, then the Escrow Deposit shall be returned to Buyer, and Escrow Holder neither party shall have any further obligation or liability to the other (other than those obligations that expressly survive a termination of this Agreement); provided, however, if the transactions hereunder shall fail to close solely by reason of Seller’s default, in a material respect, and Buyer is not in default in any material respect, then Buyer shall be entitled to (i) specifically enforce this Agreement as its sole and exclusive remedy, one (1) of the following remedies: (i) to terminate this Agreement in which event the Xxxxxxx Money shall be returned to Buyer remedy (and Buyer shall also not be entitled to recover Buyer’s Reimbursable Due Diligence Expensesbring any other action, for damages or otherwise, by reason of a default by Seller prior to Closing except as provided in (iii) below), and thereafter neither Seller nor Buyer shall have any further rights, obligations, but specific performance may not be granted or liabilities under this Agreement awarded except for the obligations pursuant to this Agreement deemed to expressly survive the terminationan arbitration proceeding commenced under Section 10.10, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days after the Closing Date, or (ii) terminate this Agreement, in which event the Escrow Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder. Notwithstanding the foregoing, if Buyer elects to terminate this Agreement as a result of such default. As used hereinSeller’s default in a material respect or as a result of a representation and warranty that was not true in a material respect as of the date when made and was not known by Buyer prior to the expiration of the Due Diligence Period to be untrue in a material respect, “or which became materially untrue after the date when made as a result of Seller’s actions or omissions, Seller shall reimburse Buyer up to Three Hundred Thousand Dollars ($300,000.00) of Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party documented, reasonable out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreementtransaction.

Default by Seller. In the event the Close of Escrow and the consummation that Seller fails to perform any of the transactions material covenants or agreements contained herein contemplated do not occur by reason of any default which are to be performed by Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder may, at its option and as its sole and exclusive remedy, one (1) of the following remedies: either (i) to terminate this Agreement in which event the Xxxxxxx Money shall be returned by giving written notice of termination to Seller whereupon Escrow Holder will return to Buyer the Deposit (and less the Independent Consideration), Seller shall reimburse Buyer shall also be entitled to recover for Buyer’s Reimbursable Due Diligence Expenses, not to exceed One Hundred Thousand Dollars ($100,000.00), and thereafter neither both Buyer and Seller nor Buyer shall have will be relieved of any further rights, obligations, obligations or liabilities under this Agreement hereunder, except for the those obligations pursuant to this Agreement deemed to which expressly survive the terminationany termination of this Agreement, or (ii) to enforce, pursue, and Buyer may seek specific performance of this Agreement within ninety Agreement; provided, however, that, (90a) Buyer shall only be entitled to the remedy in subsection (ii) above, if (1) Buyer commences and files such specific performance action in the appropriate court not later than the earlier of (A) thirty (30) days following the Outside Closing Date or (B) sixty (60) days after Buyer becomes aware of the default by Seller, and (2) Buyer is not in default under this Agreement. Except as specifically set forth in this Section 16.1, Buyer does hereby specifically waive any right to pursue any other remedy at law or equity for such default of Seller, including any right to seek, claim or obtain damages, punitive damages, consequential damages or any other damages that would be predicated in whole or in part upon loss of bargains, opportunity lost or any loss of anticipated benefits incurred by Buyer. Buyer shall not be entitled to record a lien or lis pendens against the Property other than in connection and concurrently with the filing of such defaultspecific performance action. As used hereinFor the purposes of this Section 16.1, the term “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-Buyer’s third party actual out-of-pocket expenses actually incurred by Buyer and paid (x) to Buyer’s attorneys in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and (y) to unrelated and unaffiliated third party consultants in connection with Buyer’s the performance of examinations, inspection and/or investigations under this Agreement prior to of the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this AgreementReal Property.

Default by Seller. (a) In the event the Close of Escrow that breaches shall have occurred prior to Closing as described in Sections 4.1(a) and/or 4.1(b), and the consummation aggregate Purchaser’s Losses thereunder do not or are not reasonably expected to exceed the Materiality Threshold, then if Purchaser’s Losses exceed or are reasonably expected to exceed, in the aggregate, Nine Hundred Thirty Five Thousand Dollars ($935,000.00), each breaching Seller shall be obligated to provide Purchaser with a credit against the portion of the transactions herein contemplated do not occur Purchase Price allocated to its Shopping Center in the amount obtained when the difference between the aggregate Purchaser’s Losses and Nine Hundred Thirty Five Thousand Dollars ($935,000.00), is multiplied by reason a fraction in which the numerator is the amount of any default by Purchaser’s Losses with respect to a breaching Seller’s Shopping Center and the denominator is the total amount of Purchaser’s Losses for all of the breaching Sellers’ Shopping Centers, Buyer may elect to exercise by written notice to Seller and Escrow Holder and as its Purchaser’s sole and exclusive remedy, one (1) of the following remedies: (i) and Purchaser shall have no right to terminate this Agreement as a result of Sections 4.1(a) or 4.1(b). For the avoidance of doubt, in which the event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyeraggregate Purchaser’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including Losses with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement such breaches prior to the termination of this Agreement by Buyer; providedClosing are less than or equal to Nine Hundred Thirty Five Thousand Dollars ($935,000.00) (any such Purchaser’s Losses, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure “Uncredited Purchaser’s Losses”), Purchaser shall have no rights or remedies hereunder with respect to satisfy such breaches and such breaches shall be deemed to be forever waived, except to the conditions set forth extent provided in Sections 10.1.5, 10.1.11, Section 12.6 or 10.1.12 above shall not constitute a default by Seller under this AgreementSection 15.13 hereof or such claim arises out of fraud.

Default by Seller. In the event the Close of Escrow and the consummation of the transactions herein contemplated do not occur by reason of any default by Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and Buyer, as its Buyer’s sole and exclusive remedyremedies, one (1) of the following remediesmay elect either: (i) to terminate this Agreement and receive reimbursement of the Xxxxxxx Money (including all interest thereon) in which event the Xxxxxxx Money both parties shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses)released of all further liability hereunder, and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to hereunder which expressly survive the termination, termination of this Agreement; or (ii) to enforcefile, pursuewithin thirty (30) days of the Closing Date, and seek an action for specific performance of this Agreement within ninety Seller’s express obligations hereunder, without abatement of, credit against, or reduction in the Purchase Price. Neither Escrowholder nor Seller shall be obligated to return the Xxxxxxx Money (90including all interest thereon) days to Buyer unless Buyer gives Seller and Escrowholder written notice terminating all of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean interest in the Property and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, that failure of Buyer to give Seller such notice shall not be construed to expand Buyer’s rights or remedies in no any manner. Further, in the event shall Seller be obligated under of termination of this Agreement to as a result of a default by Seller, Seller shall reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (actual, reasonable, out of pocket third party legal fees and due diligence costs, each incurred prior to the effective date of such termination, in a total combined amount not to exceed the aggregate) in excess sum of Seventy-Five One Hundred Thousand Dollars and 00/100 ($75,000.00100,000.00), which obligation of Seller shall survive any termination of this Agreement. Seller shall cause such reimbursement to be made to Buyer acknowledges not later than ten (10) business days after receipt by Seller of paid invoices or other written evidence of such costs having been incurred by Buyer and agrees that as long as Seller uses its commercially reasonable efforts to satisfy of Buyer’s payment of the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreement.

Default by Seller. In If (i) Seller shall default in any of its material obligations to be performed on the event Closing Date or (ii) Seller shall default in the Close performance of Escrow and any of its material obligations to be performed prior to the consummation of the transactions herein contemplated do not occur Closing Date and, with respect to any default under this clause (ii) only, such default shall continue for 5 days after notice to Seller, then Purchaser as its SOLE AND EXCLUSIVE REMEDY by reason thereof (in lieu of prosecuting an action for damages or proceeding with any default other legal course of conduct, the right to bring such actions or proceedings being expressly and voluntarily waived by SellerPurchaser, Buyer may elect to exercise by written notice the extent legally permissible, following and upon advice of its counsel) shall have the right, subject to Seller and Escrow Holder and as its sole and exclusive remedythe other provisions of this Section 16.2, one (1) of the following remedies: (i) to terminate this Agreement in which event the Xxxxxxx Money shall be returned seek to Buyer (and Buyer shall also be entitled to recover Buyerobtain specific performance of Seller’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, hereunder or (ii) to enforcereceive from Seller a return of the Deposit and up to $300,000 for Purchaser’s reasonable, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party documented out-of-pocket costs and expenses actually and directly incurred by Buyer Purchaser in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; providedand Purchaser’s diligence investigation (such amount shall not be in addition to, howeveror duplicative of, the amount for cost reimbursement set forth in no event the second to last paragraph of Article 6, it being the intent of the parties that Purchaser is capped at $300,000 for all such costs and expenses to be recovered from Seller). Upon such return and delivery, this Agreement shall Seller be obligated under terminate and neither party hereto shall have any further obligations hereunder except for those that are expressly provided in this Agreement to reimburse Buyer for Buyersurvive the termination hereof. Nothing contained in this Section 16.2 shall diminish Purchaser’s Reimbursable Due Diligence Expenses (in remedies, post-Closing to the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions extent expressly set forth in Sections 10.1.517.3, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under 17.4 and 17.5.2 of this Agreement. SELLER AND PURCHASER FURTHER AGREE THAT THIS SECTION 16.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, AND ABSENT FRAUD AND EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 17.3, 17.4 AND 17.5.2, SHALL BE PURCHASER’S EXCLUSIVE REMEDY AGAINST SELLER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO A BREACH BY SELLER OF ITS REPRESENTATIONS, WARRANTIES, OR COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES, ALL OF WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLER FOR ANY BREACH BY SELLER, OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS OR ITS OBLIGATIONS UNDER THIS AGREEMENT.

Default by Seller. In If Seller shall breach in any material respect of its obligations hereunder to be performed by Seller prior to or at the event Closing, or willfully causes the Close failure of Escrow a condition precedent, in each case for any reason other than Buyer’s default or failure to satisfy a condition to Closing for which Buyer is responsible or a termination of this Agreement by Buyer or Seller pursuant to a right to do so under the provisions hereof, Buyer, as its sole and the consummation of the transactions herein contemplated do not occur by reason of any default by Sellerexclusive remedies, Buyer may elect to exercise either: (i) terminate this Agreement by written notice to Seller and Escrow Holder and as its sole and exclusive remedyAgent, one (1) of the following remedies: (i) to terminate whereupon this Agreement in which event the Xxxxxxx Money shall be returned to Buyer (terminated and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer party shall have any further rightsobligations hereunder other than the Surviving Obligations, obligations, or liabilities under this Agreement except for in which case Buyer shall receive a refund of the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursueDeposit, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” Seller shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses actually incurred, and reasonably documented out of pocket costs in conjunction with the Agreement, not to exceed $75,000, which reimbursement obligation shall survive the termination of this Agreement; or (in the aggregateii) in excess of Seventy-Five Thousand Dollars initiate and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default prosecute an action for specific performance by Seller of its obligations under this Agreement. THIS SECTION SETS FORTH BUYER’S EXCLUSIVE REMEDIES IN THE EVENT OF SELLER’S BREACH OF THIS AGREEMENT. Notwithstanding anything set forth herein to the contrary, if Buyer has funded the balance of the Purchase Price at Closing in accordance with this Agreement and Seller has defaulted, Buyer shall, if entitled, be promptly returned the balance of the Purchase Price from escrow; provided that in connection with any action for specific performance brought by Buyer, Buyer shall provide proof of immediately available funds or post any bond that may be required by the court or applicable law, in the amount of the balance of the Purchase Price, in connection with such action.

Default by Seller. In the event the Close of Escrow Closing and the consummation of the transactions herein contemplated hereby do not occur as provided herein by reason of any the default by of Seller, Buyer Purchaser may elect to exercise by written notice to Seller and Escrow Holder and elect, as its the sole and exclusive remedyremedy of Purchaser, one (1) of the following remedies: to (i) to terminate this Agreement in which event and receive the Xxxxxxx Money Deposit from the Escrow Agent and, if Seller’s default was material and intentional, Purchaser shall be returned to Buyer (and Buyer shall also be entitled to recover Buyerfrom Seller all of Purchaser’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket costs and expenses actually incurred by Buyer in connection with the proposed purchase this Agreement and Purchaser’s investigations of the Property, including not to exceed One Hundred Fifty Thousand Dollars ($150,000) in the aggregate, and in such event Seller shall not have any liability whatsoever to Purchaser hereunder other than with respect to the negotiation and preparation Surviving Termination Obligations or (ii) enforce specific performance of this AgreementSeller’s obligation to convey the Property, reasonable attorneys’ feeswithout adjustment to, and in connection with Buyer’s investigations under or credit against, the Purchase Price. Purchaser shall be deemed to have elected to terminate this Agreement prior (as provided in subsection (i) above) if Purchaser fails to deliver to Seller written notice of its intent to file a cause of action for specific performance against Seller on or before ten (10) days after written notice of termination from Seller or ten (10) 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 thirty (30) days after the originally scheduled Closing Date. Notwithstanding the foregoing, nothing contained herein shall limit Purchaser's remedies at law or in equity, as to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this AgreementSurviving Termination Obligations.

Default by Seller. In the event the Close of Escrow and the consummation sale of the transactions herein Property as contemplated do hereunder is not occur by reason of any consummated due to Seller’s default by Sellerhereunder, Buyer may elect to exercise by written notice to Seller and Escrow Holder and Purchaser is not in default under this Agreement, Purchaser shall be entitled, as its sole and exclusive remedy, one either (1a) to cancel this Agreement and receive the return of the following remedies: (i) Deposit, which Escrow Agent is hereby instructed to deliver to Purchaser if Purchaser does cancel this Agreement, together with its documented direct costs and expenses incurred in connection with its inspection of the Property and negotiations of the transaction contemplated by this Agreement not to exceed $50,000.00, which return shall operate to terminate this Agreement in which event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), release Seller from any and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the terminationall liability hereunder, or (iib) to enforce, pursue, and seek enforce specific performance of Seller’s obligations under this Agreement. Purchaser expressly waives its rights to seek monetary damages in the event of Seller’s default hereunder, except as provided above. Purchaser shall be deemed to have elected to terminate this Agreement within and receive back the Deposit as provided above if Purchaser fails to file 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 ninety (90) days of such defaultfollowing the date upon which Closing was to have occurred. As used hereinNothing contained in this Section 7.2 shall limit, “Buyerrestrict or impair Purchaser’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations rights under this Agreement prior or under any of the documents and instruments executed and delivered to Purchaser pursuant to the termination of this Agreement by Buyer; provided, however, in no event terms and conditions hereof for any and all claims Purchaser shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars have from and 00/100 ($75,000.00). Buyer acknowledges and agrees after Closing or that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreementsurvive Closing.

Default by Seller. In the event the Close of Escrow and the consummation sale of the transactions herein Property as contemplated do hereunder is not occur by reason of any consummated due to default by SellerSeller hereunder, Buyer may elect to exercise by written notice to Seller and Escrow Holder and shall be entitled, as its sole and exclusive remedyremedy for Seller's default, one either (1a) to receive the return of the following remedies: Option Payment and the Deposit (itogether with all interest accrued thereon), and to recover from Seller Buyer's actual third party out of pocket costs incurred in connection with Buyer's due diligence (which costs, together with any costs incurred by Xxxxx Xxxxxxxx in connection with the 601 Property and King Street Property, shall not exceed Two Hundred Thousand Dollars ($200,000); or (b) to enforce specific performance of Seller's obligation to convey the Property to Buyer in accordance with the terms of this Agreement, it being understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Except as otherwise expressly provided in this Section 19.2 above, Buyer expressly waives its rights to seek damages in the event of Seller's default hereunder. Buyer shall be deemed to have elected to terminate this Agreement if Buyer fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which event the Xxxxxxx Money shall be returned Real Property is located, on or before one hundred twenty (120) days following the date upon which Closing was to Buyer (and have occurred. Notwithstanding the above provisions of this Section 19.2 to the contrary, Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither seek damages against Seller nor as allowed by applicable law in the event that Buyer shall have any further rights, obligations, or liabilities be prevented from obtaining specific performance of Seller's obligation to convey title to the Property to Buyer as required under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, by reason of Seller's grant or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase conveyance of the Property, including with respect any right or interest therein or any lien or encumbrance thereon to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreementany other party.

Default by Seller. In the event that Seller should fail to consummate the Close transactions contemplated by this Agreement for any reason, excepting Purchaser’s default or the failure of Escrow and the consummation any of the transactions herein contemplated do not occur by reason of any default by conditions to Seller’s obligations hereunder to be satisfied or waived, Buyer may elect then, after notice and five (5) business days to exercise by written notice to Seller and Escrow Holder and as its sole and exclusive remedycure, one (1) of Purchaser shall have the following remediesright to: (i) to terminate this Agreement by giving prompt written notice thereof to Seller, in which event the Xxxxxxx Money Deposit shall be returned to Buyer (Purchaser and Buyer Seller shall also be entitled to recover Buyerreimburse Purchaser for Purchaser’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer costs in connection with this transaction, not to exceed $15,000.00; or (ii) specifically enforce the proposed purchase of the Property, including with respect to the negotiation and preparation terms of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, that in no the event that such failure of Seller was beyond Seller’s reasonable control, Purchaser’s sole remedy shall Seller be obligated under to so terminate this Agreement to reimburse Buyer for Buyerunder subparagraph (i) above. Purchaser’s Reimbursable Due Diligence Expenses (rights in the aggregate) in excess of Seventy-Five Thousand Dollars preceding sentence shall be Purchaser’s sole and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller exclusive remedies under this Agreement, unless Seller’s default is its intentional failure to convey title to the Property to Purchaser, in which event, Purchaser may pursue any and all remedies available to it at law or in equity. Purchaser must elect to exercise its rights under subparagraph (i) or (ii) above within thirty (30) days after Purchaser declares Seller in default. If Purchaser fails to make such election within said 30-day period, Purchaser shall be deemed to have elected the remedy under clause (i) hereof.

Default by Seller. 12.1.1 In the event that on or before the Close of Escrow and Closing Date Seller has defaulted on its obligations hereunder in any material respect, then, subject to the consummation of the transactions herein contemplated do not occur by reason of any default by Sellerprovisions set forth below, Buyer may elect to exercise by written notice to Seller and Escrow Holder and Purchaser shall be entitled, as its sole and exclusive remedy, one to either: (1x) treat this Agreement as being in full force and effect and pursue only the remedy of the following remedies: specific performance against Seller (but no other action, for damages or otherwise, shall be permitted; provided, if specific performance is unavailable to Purchaser as a result of a willful breach by Seller of this Agreement, then Purchaser shall be permitted to institute an action for damages not to exceed Thirty Million Dollars ($30,000,000); or (y) terminate this Agreement and receive (i) to terminate this Agreement the Deposit and Interest from the Escrow Agent in which event accordance with the Xxxxxxx Money shall be returned to Buyer (terms and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), provisions of Section 3.2 hereof and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) reimbursement from Seller up to enforcean amount not to exceed Dollars ($ ), pursue, for the reasonable costs and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer Purchaser in connection with the proposed purchase Purchaser’s negotiation and execution of the Property, including this Agreement and due diligence with respect to the negotiation and preparation Property. Purchaser waives any right to pursue any other remedy at law or in equity for any default of Seller, including, without limitation, any right to seek, claim or obtain damages, other than in the case of Seller’s fraud or willful misconduct, but in no case shall Purchaser seek punitive damages or consequential damages. Notwithstanding anything to the contrary contained in this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement if prior to the termination Closing Date Purchaser has or obtains knowledge that (a) Seller has defaulted on its obligations hereunder in any respect, and Purchaser nevertheless proceeds with the Closing, then the default by Seller as to which Purchaser shall have such knowledge shall be deemed waived by Purchaser and Seller shall have no liability to Purchaser or its successors and assigns in respect thereof, or (b) any of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for BuyerSeller’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions representations or warranties set forth in Sections 10.1.5Article VI are untrue in any respect, 10.1.11and Purchaser nevertheless proceeds with the Closing, or 10.1.12 above shall not constitute a default then the breach by Seller under this Agreementof the representations and warranties as to which Purchaser shall have such knowledge shall be deemed waived by Purchaser, and such representations and warranties shall be deemed modified to conform them to the information that Purchaser shall have knowledge of and Seller shall have no liability to Purchaser or its successors or assigns in respect thereof. Purchaser shall promptly notify Seller in writing if Purchaser has or obtains knowledge that Seller has defaulted on its obligations hereunder in any respect.

Default by Seller. In Notwithstanding any provision in this Agreement to the event the Close of Escrow and the consummation contrary, if Closing of the transactions purchase and sale transaction provided for herein contemplated do does not occur as herein provided by reason of any default by of Seller, Buyer may Purchaser may, as Purchaser’s sole and exclusive remedies, elect to exercise by written notice to Seller and Escrow Holder and as its sole and exclusive remedywithin five (5) Business Days following the scheduled Closing Date, one to either (1a) of the following remedies: (i) to terminate this Agreement Agreement, in which event the Xxxxxxx Money Seller shall be returned obligated to Buyer promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expensescosts of hedging and other rate lock contracts), and thereafter neither Seller nor Buyer shall have any further rightsall of Purchaser’s legal fees and expenses related thereto, obligationsnot to exceed, or liabilities under this Agreement except for the obligations pursuant however, $700,000.00 with respect to this Agreement deemed and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx 42 Money Deposit, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to expressly survive the terminationTermination Surviving Obligations, or (iib) to enforce, pursue, and seek pursue specific performance of this Agreement Agreement, so long as any action or proceeding commenced by Purchaser against Seller shall be filed and served within ninety thirty (9030) days of such default. As used hereinthe scheduled Closing Date, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer and, in connection with the proposed purchase of the Propertyeither event, Purchaser hereby waives all other remedies, including with respect without limitation, any claim against Seller for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Seller’s conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Agreement to reimburse Buyer for BuyerSection 13.1 will limit Purchaser’s Reimbursable Due Diligence Expenses (remedies at law, in equity or as herein provided in the aggregate) in excess event of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default breach by Seller under of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.

Default by Seller. In Notwithstanding any provision in this Agreement to the event the Close of Escrow and the consummation contrary, if Closing of the transactions purchase and sale transaction provided for herein contemplated do does not occur as herein provided by reason of any default by of Seller, Buyer may Purchaser may, as Purchaser’s sole and exclusive remedies, elect to exercise by written notice to Seller and Escrow Holder and as its sole and exclusive remedywithin five (5) Business Days following the scheduled Closing Date, one to either (1a) of the following remedies: (i) to terminate this Agreement Agreement, in which event Seller shall be obligated to promptly reimburse Purchaser for its actual out of pocket costs incurred in connection with this Agreement or the Property including, but not limited to, the negotiation of this Agreement, Purchaser’s due diligence with respect to the Property, Purchaser’s financing with respect to the Property (including, but not limited to, good faith deposits, commitment fees, and costs of hedging and other rate lock contracts), and all of Purchaser’s legal fees and expenses related thereto, not to exceed, however, $700,000.00 with respect to this Agreement and the Other Property Agreements in the aggregate, and Purchaser shall receive from the Title Company the Xxxxxxx Money shall be returned to Buyer (Deposit, whereupon Seller and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall Purchaser will have any no further rights, obligations, rights or liabilities obligations under this Agreement Agreement, except for with respect to the obligations pursuant to this Agreement deemed to expressly survive the terminationTermination Surviving Obligations, or (iib) to enforce, pursue, and seek pursue specific performance of this Agreement Agreement, so long as any action or 48 proceeding commenced by Purchaser against Seller shall be filed and served within ninety thirty (9030) days of such default. As used hereinthe scheduled Closing Date, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer and, in connection with the proposed purchase of the Propertyeither event, Purchaser hereby waives all other remedies, including with respect without limitation, any claim against Seller for damages of any type or kind including, without limitation, consequential or punitive damages. Unless otherwise expressly required pursuant to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend money or post a bond to remove or insure over anything other than a Must-Cure Matter or to correct any matter shown on a survey of the Property; (C) secure any permit with respect to the Property or Seller’s conveyance thereof; or (D) expend any money to repair, improve or alter the Improvements or any portion thereof. Notwithstanding the foregoing, nothing contained in this Agreement to reimburse Buyer for BuyerSection 13.1 will limit Purchaser’s Reimbursable Due Diligence Expenses (remedies at law, in equity or as herein provided in the aggregate) in excess event of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default breach by Seller under of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination, subject to the terms and provisions of this Agreement.

Default by Seller. In the event If the Close of Escrow and the consummation of the transactions herein contemplated do does not occur by reason of any a default by SellerSELLER, Buyer may elect to exercise by written notice to Seller SELLER shall be responsible for payment of all costs, expenses, fees and charges of Escrow Holder Agent and as its sole and exclusive remedy, one (1) Title Company chargeable on account of the following remedies: cancellation of the Escrow. In addition, BUYER shall be entitled to and shall receive a refund of all unexpended Deposits made hereunder for work that has not been performed and shall be entitled either to (ia) pursue the specific performance of the conveyance of the Property pursuant to this Agreement, (b) recover damages (including the amount of any Deposits) in an amount and subject to the limitations provided in subsection 14.2.1 below, or (c) pursue its self-help remedies under subsection 14.5 below. In the case of a default by SELLER under provisions of this Agreement that do not concern obligations relating to the development of the Improvements, BUYER shall have the right to terminate this Agreement in which event on account of SELLER's default and such termination shall become effective unless SELLER thereafter fails to fully cure such default within thirty (30) days from the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for delivery of the obligations pursuant to this Agreement deemed to expressly survive the notice of termination, or if such default is not reasonably susceptible to cure within such thirty (ii30) day period, SELLER commences the cure within such period and diligently completes such cure within a reasonable time. In addition, SELLER has delivered to enforceBUYER, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection concurrently with the proposed purchase of the Property, including with respect to the negotiation and preparation execution of this Agreement, reasonable attorneys’ feesa Guaranty dated October 25, 2002, executed by Hamann Construction, Inc., and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; providedHarmony Xxxxxx Partners L.P. (collectively, however"GUARANTOR"), in no event shall Seller be obligated under this Agreement the form attached hereto as EXHIBIT "14", to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess guaranty performance of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller SELLER's obligations under this Agreement.. SELLER covenants and agrees, at all times from and after the Effective Date until the Close of Escrow, to maintain, in the aggregate with Guarantor, a tangible net worth of not less than Fifteen Million Dollars ($15,000,000.00); provided however, shareholder loans shall be deemed assets and not liabilities for determination of this net worth, provided that said loans shall at all times be subordinate to Guarantor's obligations under the Guaranty and Guarantor acknowledges the same. SELLER shall provide BUYER with financial statements of SELLER and Guarantor, within ten (10) days after the Opening of Escrow, and thereafter upon reasonable request of BUYER, evidencing that such parties satisfy such minimum aggregate net worth requirement

Default by Seller. In the event the Close of Escrow Closing and the consummation of the transactions herein contemplated hereby do not occur as herein provided by reason of any default by of Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and Purchaser may, as its Purchaser's sole and exclusive remedy, one elect by notice to Seller within ten (110) Business Days following the Scheduled Closing Date, either of the following remediesfollowing: (ia) terminate this Agreement, in which event Seller will reimburse Purchaser's actual, reasonable out-of­ pocket transaction costs up to $75,000.00 and Purchaser will receive from the Escrow Agent the Xxxxxxx Money Deposit, together with all interest accrued thereon, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller's obligation to convey the Property to Purchaser in accordance with the terms and conditions of this Agreement (it being understood and agreed that the remedy of specific performance shall not be available to enforce other obligations of Seller hereunder). Notwithstanding the forgoing, if Purchaser elects to terminate this Agreement in which event the Xxxxxxx Money shall be returned pursuant to Buyer clause (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligationsa) above, or liabilities under this Agreement except for the obligations pursuant to this Agreement is deemed to expressly survive have so terminated this Agreement, on account of Seller voluntarily having transferred title to the termination, or (ii) Real Property to enforce, pursue, and seek specific performance a third party in willful violation of this Agreement within ninety (90) days and thereby rendering specific performance unobtainable, then Purchaser shall have the right to seek, in addition to the $75,000.00 of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred transaction costs, any actual direct damages (which, for the avoidance of doubt, shall include the amount by Buyer in connection with which the proposed purchase sales price to such third party exceeds the Purchase Price hereunder, but shall exclude consequential damages) to which Purchaser is entitled at law, provided that the aggregate amount of the Property, including with respect such transaction costs and damages shall not exceed an amount equal to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior Xxxxxxx Money Deposit. Purchaser expressly waives its rights to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (seek damages in the aggregate) in excess event of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that Seller's default hereunder, except as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions expressly set forth in Sections 10.1.5the preceding sentence. Purchaser shall be deemed to have elected to terminate this Agreement pursuant to clause (a) above if Purchaser fails to file 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 sixty (60) days following the Scheduled Closing Date. Notwithstanding the foregoing, 10.1.11nothing contained in this Section 13.1 will limit Purchaser's remedies at law, in equity or 10.1.12 above shall not constitute as herein provided in pursuing remedies for a default breach by Seller under this Agreementof any of the Termination Surviving Obligations or Closing Surviving Obligations.

Default by Seller. In If the event the Close of Escrow and the consummation of the transactions herein contemplated do Closing shall not occur by reason of Seller’s default under this Agreement or the failure of satisfaction of the conditions benefiting Buyer under Section 4 above or the termination of this Agreement in accordance with Section 4 or Section 6 herein, then the Deposit (less the Independent Consideration, which shall be paid to Seller) shall be returned to Buyer, and neither party shall have any default further obligation or liability to the other (other than those obligations that expressly survive a termination of this Agreement); provided, however, if the Closing shall not occur by reason of Seller’s default, then Buyer may elect to exercise by written notice to Seller and Escrow Holder and shall be entitled as its sole and exclusive remedyremedy to either (a) specifically enforce this Agreement, one but an action for specific performance must be commenced within sixty (160) days after the last scheduled Closing Date pursuant to the terms of the following remedies: this Agreement or be forever barred, or (ib) to terminate this Agreement in and obtain a return of the Deposit (less the Independent Consideration, which event the Xxxxxxx Money shall be returned paid to Buyer (Seller), but no other action, for damages or otherwise, shall be permitted. In the event that specific performance is not available and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under terminates this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the terminationSection 9.1, or (ii) to enforce, pursue, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “then Seller shall reimburse Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party reasonable, actual out-of-pocket fees and expenses actually incurred by Buyer in connection with the proposed purchase its inspection and investigation of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable Buyer’s attorneys’ fees, fees and expenses incurred in connection with Buyer’s investigations under this Agreement prior to the termination negotiation of this Agreement by Buyerand the Access Agreement, in an aggregate amount not to exceed Fifty Thousand and No/100 U.S. Dollars ($50,000.00) (the “Pursuit Costs”); provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above such Pursuit Costs shall not constitute preclude Buyer from collecting attorneys’ fees in connection with a default by suit or other proceeding against Seller under this Agreementpursuant to Section 10.10 hereof if Buyer is the prevailing party in any such action.

Default by Seller. In the event the Close If Seller shall have failed to have timely performed any of Escrow and the consummation of the transactions its obligations, covenants and/or agreements contained herein contemplated do not occur by reason of any default which are to be performed by Seller, Buyer may elect and Seller shall not have cured said failure within (i) fifteen (15) days with respect to exercise by any monetary default, or (ii) thirty (30) days with respect to any non-monetary default, after written notice to Seller and Escrow Holder and thereof, then Purchaser, at its option may, as its sole and exclusive remedyremedies, one (1) of the following remedies: either (i) to cancel and terminate this Agreement and in which event such event, this Agreement shall terminate and the Xxxxxxx Exxxxxx Money shall Deposit will be promptly returned to Buyer (Purchaser and Buyer Seller shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under reimburse Purchaser for its reasonable out of pocket expenses incurred negotiating this Agreement except for and pursuing the obligations pursuant Property in a total aggregate amount to this Agreement deemed to expressly survive the termination, not exceed One Hundred and Fifty Thousand Dollars ($150,000) as demonstrated by invoices and other reasonable documentation evidencing costs incurred; or (ii) to enforcepursue a claim in equity for specific performance, pursuebut, and seek if the remedy of specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase is not available because of the Propertyactions of Seller, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyerthen Purchaser may sxx Seller for money damages; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (will Seller's liability any damages exceed, in the aggregate) in excess of Seventy-Five , Seven Hundred Fifty Thousand Dollars and 00/100 ($75,000.00750,000.00). Buyer acknowledges Purchaser specifically waives any and agrees that all other rights which it may have to any damages as long as Seller uses its commercially reasonable efforts to satisfy a result of any such default on the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by part of Seller under this Agreement. Notwithstanding the foregoing, nothing herein shall be construed to prevent Purchaser from enforcing any post-Closing obligation of Seller in any other agreement made between Seller and Purchaser, including without limitation the Punchlist and Construction Escrow Agreement.

Default by Seller. In Notwithstanding anything herein to the event contrary, if Seller (a) had actual knowledge that any of the Close representations and warranties set forth in Section 11.1 hereof were untrue as of Escrow the Effective Date and the consummation of the transactions herein contemplated do not occur by reason failure of any default by Sellersuch representation or warranty to be true would have a “material adverse impact” (as such term is defined in Section 11.1 hereof) on the Property, Buyer may elect to exercise by written notice to Seller and Escrow Holder and as or (b) defaults in its obligations expressly stated in this Agreement, then Buyer’s sole and exclusive remedy, remedy shall be to elect one (1) of the following remediesfollowing: (i) to terminate this Agreement Agreement, in which event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover the return by the Escrow Holder to Buyer of the Deposit and Seller shall reimburse Buyer for Xxxxx’s out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses), as supported by reasonable documentation satisfactory to Seller, incurred in connection with Buyer’s Reimbursable Due Diligence Expenses)due diligence investigations and negotiation and execution of this Agreement, and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) in the obligations pursuant to this Agreement deemed to expressly survive the terminationaggregate, or (ii) if Seller’s breach arises out of its failure to enforcesell and convey the Property to Buyer on the Closing Date, pursue, and seek to bring a suit for specific performance of this Agreement for such breach provided that any suit for specific performance must be brought as to the Property within ninety (90) 45 days of such Seller’s default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer waiving the right to bring suit at any later date to the extent permitted by law; provided further, however, to the extent that Seller cause Xxxxx’s remedy of specific performance to be unavailable due to Seller’s selling the Property to another third-party out-of-pocket expenses actually prior to the Closing Date, then Buyer shall be entitled to recover damages from Seller. This Agreement confers no present right, title or interest in the Property to Xxxxx and Xxxxx agrees not to file a lis pendens or other similar notice against the Real Property except in connection with, and after, the proper filing of a suit for specific performance. Nothing in this Section 13.2 shall prevent or preclude any recovery of attorneys’ fees or other costs incurred by Buyer in connection with the proposed purchase of the Property, including with respect pursuant to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this AgreementSection 15.5.

Default by Seller. In If Seller fails, without legal excuse, to complete the event the Close of Escrow and the consummation sale of the transactions herein contemplated do not occur by reason Property in accordance with the terms of any default by Sellerthis Agreement or otherwise defaults hereunder, Buyer may elect to exercise pursue any remedy provided by written notice law or in equity, including termination of this Agreement and suit for damages and specific enforcement in a proper case. If Seller's default consists of its failure to Seller and Escrow Holder and tender at Closing its deliveries as its sole and exclusive remedydescribed at Section 7.2, one (1) of the following remedies: (i) then Buyer may elect to terminate this Agreement the Agreement, in which event case the Xxxxxxx Money shall be returned to Buyer, Seller shall pay to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses)the Contribution described below, and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except no other remedy for the obligations pursuant to this Agreement deemed to expressly survive the termination, or (ii) to enforce, pursueSeller's default, and seek specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” the parties shall mean and refer have no further obligations hereunder except under those provisions intended to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to survive the termination of this Agreement by Agreement. It is understood that nothing in the preceding sentence is intended to limit or impair Buyer; provided's remedies for Seller's breach unless Buyer elects the remedies described in the preceding sentence, howeverand that if Buyer has the right to the remedies described in the preceding sentence but elects not to seek those remedies (as it may elect or not in its sole discretion), then Buyer shall have the right to seek all remedies available at law and in no event shall Seller be obligated under this Agreement equity, including specific performance in a proper case and all provable damages. The Contribution is the sum of Three Hundred Fifty Thousand Dollars (US$350,000.00) and is intended (a) to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses 's costs and expenses payable to third parties in connection with its due diligence relating to the Property, and (b) to compensate Buyer for Buyer's time and expenses relating to the negotiations contemplated hereunder and the time of Buyer's executives to make the necessary arrangements to organize and finance this transaction, all of which losses would otherwise be difficult to ascertain. If Buyer elects to receive the Contribution and Seller pays it, then Buyer within ten (10) days after receipt of the Contribution shall convey and deliver to Seller possession and all of Buyer's right, title, and interest in and to all analyses, maps, reports, studies, surveys, and other documents owned or possessed by Buyer and relating to the aggregate) Property. The parties expressly acknowledge and agree that the Contribution is reasonable in excess light of Seventy-Five Thousand Dollars Buyer's time, opportunity cost and 00/100 ($75,000.00). Buyer acknowledges expenditures to examine the Property, to negotiate this Agreement and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under conduct due diligence both before and following execution of this Agreement.

Default by Seller. In Notwithstanding anything herein to the event contrary, if Seller (a) had actual knowledge that any of the Close representations and warranties set forth in Section 11.1 hereof were untrue as of Escrow the Effective Date and the consummation of the transactions herein contemplated do not occur by reason failure of any default by Sellersuch representation or warranty to be true would have a “material adverse impact” (as such term is defined in Section 11.1 hereof) on the Property, Buyer may elect to exercise by written notice to Seller and Escrow Holder and as or (b) defaults in its obligations expressly stated in this Agreement, then Buyer’s sole and exclusive remedy, remedy shall be to elect one (1) of the following remediesfollowing: (i) to terminate this Agreement Agreement, in which event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover the return by the Escrow Holder to Buyer of the Deposit and Seller shall reimburse Buyer for Buyer’s Reimbursable Due Diligence Expensesout-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses), as supported by reasonable documentation satisfactory to Seller, incurred in connection with Buyer’s due diligence investigations and thereafter neither Seller nor Buyer shall have any further rightsnegotiation and execution of this Agreement, obligations, or liabilities under this Agreement except for not to exceed One Hundred Thousand Dollars ($100,000.00) in the obligations pursuant to this Agreement deemed to expressly survive the terminationaggregate, or (ii) if Seller’s breach arises out of its failure to enforcesell and convey the Property to Buyer on the Closing Date, pursue, and seek to bring a suit for specific performance of this Agreement for such breach provided that any suit for specific performance must be brought as to the Property within ninety (90) 45 days of such Seller’s default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer waiving the right to bring suit at any later date to the extent permitted by law; provided further, however, to the extent that Seller cause Buyer’s remedy of specific performance to be unavailable due to Seller’s selling the Property to another third-party out-of-pocket expenses actually prior to the Closing Date, then Buyer shall be entitled to recover damages from Seller. This Agreement confers no present right, title or interest in the Property to Buyer and Buyer agrees not to file a lis pendens or other similar notice against the Real Property except in connection with, and after, the proper filing of a suit for specific performance. Nothing in this Section 13.2 shall prevent or preclude any recovery of attorneys’ fees or other costs incurred by Buyer in connection with the proposed purchase of the Property, including with respect pursuant to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this AgreementSection 15.5.

Default by Seller. In If the event the Close transaction is not consummated as a result of Escrow and the consummation of the transactions herein contemplated do not occur by reason of any a default by Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and then Buyer, as its sole and exclusive remedyonly remedies hereunder, one (1) to the exclusion of the following remedies: all other potential remedies under this Agreement, at law or in equity, may either (i) to terminate this Agreement in which event by delivery of notice of termination to Seller, whereupon (A) the Xxxxxxx Exxxxxx Money plus interest accrued thereon shall be immediately returned to Buyer (and Buyer less the Non-Refundable Payment, which shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expensesretained by Seller), and thereafter (B) Seller shall pay to Buyer its Expense Reimbursement, in which case neither Seller nor Buyer Party shall have any further rights, obligations, rights or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to hereunder other than those rights and obligations which expressly survive the termination, termination of this Agreement; or (ii) to enforcecontinue this Agreement pending Buyer’s action for specific performance, pursueprovided, and seek however, that any such action for specific performance of this Agreement shall be filed and served by Buyer within ninety thirty (9030) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase date which is the later of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to (x) the termination of this Agreement by Seller, or (y) the date on which Buyer has Actual Knowledge of the event or occurrence comprising the alleged default on the part of Seller, it being the intent of the Parties hereto that any failure of Buyer to meet the time deadline set for filing shall be deemed to be Buyer; provided, however, in ’s election to waive and relinquish any rights to enforce specific performance of this Agreement. In no event shall Seller be obligated liable to Buyer in connection with any breach or default on the part of Seller under this Agreement for any incidental, special, exemplary, punitive or consequential damages, including, without limitation, loss of profits or revenue, interference with business operations, loss of tenants, lenders, investors, buyers, diminution in value of the Property, or inability to reimburse Buyer for use the Property. Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreement.Initials RFM

Default by Seller. Except where due to the occurrence of a Section 19.n. Force Majeure event or an Event of Default by Purchaser, in the event that: (i) Seller’s fails to satisfy any condition precedent set forth at Section 12.1(a), 12.1 (b) or 12.1(c) hereof, and Seller shall not have cured said failure within ten (10) business days after written notice thereof from Purchaser, then such failure shall constitute an “Event of Default” by Seller hereunder. In the event the Close Event of Escrow and the consummation of the transactions herein contemplated do not occur by reason of any default Default by Seller, Buyer may elect as defined pursuant to exercise this Section 18, Purchaser shall be entitled to either: (a) terminate this Agreement by written notice to Seller and Escrow Holder and as its sole and exclusive remedy, one within ten (110) days of the following remediesoccurrence of the Event of Default, in which event Purchaser shall be entitled to receive an immediate refund of the Xxxxxxx Money Deposit, together with reimbursement from Seller of all of Purchaser’s out-of-pocket costs and expenses, including without limitation reasonable legal fees and expenses, actually incurred in connection with: (i) to terminate this Agreement in which event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the termination, or its due diligence investigations; (ii) to enforce, pursue, the Survey (ii) the Title Commitment; (iv) Purchaser’s proposed financing of the acquisition of the Property; and seek (v) all other costs incurred by Purchaser in connection with the negotiations or performance of this Agreement; or (b) pursue specific performance of this Agreement within ninety (90) days of such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the Property, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyeragainst Seller; provided, however, in no event that Seller shall Seller not be obligated under this Agreement entitled to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (pursue such specific performance in the aggregate) in excess event that the subject Event of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the Default arose out of Seller’s failure to satisfy the conditions set forth in deliver to Purchaser at Closing those items required pursuant to Sections 10.1.511.1(g), 10.1.11(h), or 10.1.12 above shall not constitute a default by Seller under this Agreement(i), (j), (1), (n) and/or (o) hereof.

Default by Seller. In the event the Close Seller fails to comply with any of Escrow and the consummation of the transactions herein contemplated do not occur by its obligations or conditions hereunder for any reason of any default by Seller, Buyer may elect to exercise by written notice to Seller and Escrow Holder and as its sole and exclusive remedy, one (1) of the following remedies: except for (i) to terminate this Agreement in which event the Xxxxxxx Money shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to expressly survive the terminationpermissible reasons set forth herein, or (ii) Buyer’s default, Buyer shall have the right to enforce(i) cancel this Agreement and receive the return of the balance of the Deposit, pursue, and or (ii) seek the specific performance of this Agreement Agreement. It is expressly provided, however, that Buyer shall provide Seller with written notice of any default hereunder which notice shall provide Seller with a ten (10) day grace period within ninety (90) days which to cure any default of which notice has been given or such default. As used herein, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer longer period of time as is reasonably necessary to third-party out-of-pocket expenses actually incurred by Buyer in connection with cure the proposed purchase default if the nature of the Propertydefault is such that it cannot be cured within the ten (10) day grace period and Seller is diligently and continuously prosecuting such cure to completion but, including with respect to the negotiation and preparation of this Agreementin no event, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyerlonger than twenty (20) days; provided, however, that notwithstanding the foregoing there shall be no notice requirement or curative opportunity in no the event shall the default is a failure by Seller be obligated under to close the transaction contemplated by this Agreement to reimburse Buyer for on the Closing Date. Notwithstanding anything in this Section 6.1 or in this Agreement, the foregoing provisions of this Section shall not limit Buyer’s Reimbursable Due Diligence Expenses (right to seek damages against Seller in the aggregateevent of (i) in excess of Seventy-Five Thousand Dollars a willful and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, knowing breach or 10.1.12 above shall not constitute a default misrepresentation by Seller under of the representations and warranties made by Seller in this AgreementAgreement and/or (ii) a willful bad-faith refusal by Seller to close the transaction contemplated by this Agreement in strict accordance with the terms and conditions. It is expressly acknowledged by Seller that Buyer, in its sole and absolute discretion, may elect to waive any and all defaults by Seller hereunder and proceed to Closing.

Default by Seller. In the event the Close of Escrow and the consummation of the transactions herein contemplated do not occur by reason of any material default by SellerSellers, Buyer may elect to exercise by written notice to Seller and Escrow Holder and Buyer, as its Buyer's sole and exclusive remedy, one may, provided Buyer has given Sellers written notice of such default and Sellers’ failure to cure such default within five (15) of business days following such notice being given (other than a failure to consummate a Closing on the following remediesClosing Date, which shall not be subject to a notice and cure period), elect either: (i) to terminate this Agreement and receive reimbursement of the Xxxxxxx Money (including all interest thereon) and payment by Seller of Buyer’s Transaction Costs (as hereinafter defined), in which event the Xxxxxxx Money both parties shall be returned to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses)released of all further liability hereunder, and thereafter neither Seller nor Buyer shall have any further rights, obligations, or liabilities under this Agreement except for the obligations pursuant to this Agreement deemed to hereunder which expressly survive the termination, termination of this Agreement; or (ii) to enforcefile, pursuewithin sixty (60) days of the Closing Date, and seek an action for specific performance of Seller's express obligations hereunder, without abatement of, credit against, or reduction in the Purchase Price. Notwithstanding the foregoing, Buyer and Sellers agree that nothing contained herein shall limit Buyer's right to seek and obtain damages from Sellers due to Sellers defaulting in its obligations hereunder which expressly survive the termination of this Agreement. For purposes of this Section 13.2, Buyer’s Transaction Costs shall mean any costs and expenses actually paid or incurred by Buyer to third-parties (except as expressly provided herein) as of the date of such termination of this Agreement within ninety by Buyer pursuant to this Section 13.2, including attorney fees (90including in-house attorneys of Buyer or its affiliates at a rate of $300/hour), third parties’ fees and actual, out-of-pocket expenses (such as travel costs) in connection with the performance of examinations, inspections and/or investigations of the Property and to any potential lender in connection with any proposed financing of the Property (all as substantiated by written invoices therefor), in an amount not to exceed (x) $75,000.00 per Property if Seller’s material default occurs at any time between the date of this Agreement and the date on which Buyer gives Seller written notice that Buyer has paid a rate lock deposit or spread lock deposit (which deposit shall not be made by Buyer more than three (3) business days prior to the Closing Date) to any lender providing financing to Buyer in connection with the purchase of such defaultthe Property (the “Rate Lock Notice”) or (y) $75,000.00 per Property PLUS the Rate Lock Deposit (as hereinafter defined), if the Seller’s material default occurs at any time following the date on which Buyer has properly given Seller the Rate Lock Notice and is an Intentional Default. As used herein, “Buyer’s Reimbursable Due Diligence ExpensesRate Lock Deposit” shall mean and refer an amount equal to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase (but not to exceed) 2% of the Property, including with respect loan amount attributable to the negotiation applicable Property (which shall not exceed 72% of the applicable Purchase Price of such Property) if actually paid by or on behalf of Buyer to a lender and preparation not refundable by such lender. As used herein, “Intentional Default” shall mean any default by Seller under this Agreement which arises from one or more of the following: (a) Seller’s fraud, (b) Seller’s criminal conduct (i.e. conduct that constitutes a felony under applicable law), (c) intentional or grossly negligent breach by Seller of any of its obligations under this Agreement, reasonable attorneys’ feesor (d) a representation or warranty made by Seller if Seller had actual knowledge that such representation or warranty was untrue when made, provided however that changes in factual matters between the Effective Date and the 41 Closing Date which render Seller unable to remake such representation or warranty on the Closing Date shall not constitute an Intentional Seller Default. In the event that Buyer elects specific performance hereunder but such remedy is unavailable due to an Intentional Default by Seller, then Buyer shall have the rights to terminate and recover its Transaction Costs as provided in connection with Buyersubsection (i) of this Section 13.2, which right shall be automatically reinstated. Seller’s investigations reimbursement obligations under this Agreement prior to the Section 13.2 shall survive any termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated Buyer under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00)Section 13.2. Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this Agreement.ARTICLE 14

Default by Seller. In If Seller fails to comply substantially with the event terms and conditions of this Agreement and if Buyer shall have complied with all of its obligations hereunder, Buyer shall give Seller and Escrow Agent a written notice detailing the Close default of Escrow Seller. Seller shall have ten (10) days from the date such notice has been given within which to remedy the default, except that if the required performance cannot be reasonably completed by Seller within such ten (10) days, then Seller shall have a reasonable time (but not more than sixty (60) days) within which to remedy the default. All of Seller's obligations and the consummation time periods associated therewith shall be delayed to the extent Seller is unable to perform any of its obligations on account of Force Majeure beyond the transactions herein contemplated do reasonable control of Seller. If Seller does not occur by reason of any default by Sellertimely remedy the default, Buyer may elect to exercise by written notice to Seller and Escrow Holder and as its sole and exclusive remedy, one (1) of the following remedies: (i) to terminate this Agreement in which event and the Xxxxxxx Escrow, whereupon the Earnest Money shall be returned immediately to Buyer (and Buyer shall also be entitled to recover Buyer’s Reimbursable Due Diligence Expenses), and thereafter neither Seller nor Buyer shall Pxxxx xxall have any further rightsobligation to the other, obligations, or liabilities under this Agreement except for the any obligations pursuant hereunder that are to this Agreement deemed to expressly survive the termination. WITHOUT LIMITING THE FOREGOING, or (ii) to enforceTHE PARTIES EXPRESSLY WAIVE ANY RIGHT TO HAVE ANY DISPUTE BETWEEN THEM HEARD, pursueRESOLVED OR DECIDED BY A JURY, and seek specific performance of this Agreement within ninety (90) days of such defaultAND EXPRESSLY WAIVE TRIAL BY JURY. As used hereinANY DISPUTE OR PROCEEDING SHALL BE HEARD, “Buyer’s Reimbursable Due Diligence Expenses” shall mean and refer to third-party out-of-pocket expenses actually incurred by Buyer in connection with the proposed purchase of the PropertyRESOLVED AND DECIDED BY A JUDGE SITTING WITHOUT A JURY, including with respect to the negotiation and preparation of this Agreement, reasonable attorneys’ fees, and in connection with Buyer’s investigations under this Agreement prior to the termination of this Agreement by Buyer; provided, however, in no event shall Seller be obligated under this Agreement to reimburse Buyer for Buyer’s Reimbursable Due Diligence Expenses (in the aggregate) in excess of Seventy-Five Thousand Dollars and 00/100 ($75,000.00). Buyer acknowledges and agrees that as long as Seller uses its commercially reasonable efforts to satisfy the same, the failure to satisfy the conditions set forth in Sections 10.1.5, 10.1.11, or 10.1.12 above shall not constitute a default by Seller under this AgreementIN A COURT WITH JURISDICTION OVER THE MATTER.