Common use of Default by Seller Clause in Contracts

Default by Seller. If the sale of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller's obligation to execute and deliver 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; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default.

Default by Seller. If If, through no fault of Purchaser, Seller defaults in the sale performance of the Property as contemplated hereunder is not consummated due to Seller's default its obligations hereunder, then provided Purchaser shall be entitledis not in default of any of its obligations under this Agreement, as its sole remedy for such defaultPurchaser by written notice of default to Seller, either (a) to receive the return of the Xxxxxxx Money, which return shall operate may elect to terminate this Agreement and release Seller immediately may demand the return of the Deposit from the Trustee and any interest accrued thereon together with a certified check or cashier's check to order of Purchaser in payment of all reasonable expenses actually incurred by Purchaser for: (i) the due diligence investigations provided for in subparagraphs A, B. C, D, E, F, G, H and all liability hereunder, or I of paragraph 10 of this Agreement; and (bii) to enforce specific performance of reasonable legal fees in connection with the transactions contemplated by this Agreement. The parties recognize that Seller's obligation default will cause substantial injury to execute Purchaser and deliver the documents required to convey the Property to Purchaser, it being understood and agreed agree that the remedy amount represented by the interest accrued on the Deposit, and the liquidated damages as calculated in subparagraphs 11.B.(i) and (ii) above shall be a fair and reasonable approximation of specific performance shall not be available to enforce any other obligation of Seller hereunder. the damages Purchaser expressly waives its rights to seek damages will suffer in the event of Seller's default hereunder; provided, however, default. It is understood and agreed upon that if upon Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes Purchaser's receipt of the election described in clause (a) above (Deposit together with any interest accrued thereon, and a certified check or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal cashier's check to the lesser order of Purchaser in the amount of said liquidated damages due Purchaser, this Agreement will terminate and the parties will have no further liability or obligation hereunder except for: (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or Purchaser's obligation to return to Seller all documents and plans delivered to Purchaser by Seller; and (ii) the amount indemnification obligations of all third-party out-of-pocket costs the parties as provided in paragraph 10 of this Agreement. Seller's and expenses actually incurred by Purchaser Purchaser's obligation to indemnify the Trustee and hold it harmless (as provided in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event Schedule C) shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect survive any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs termination of this Agreement. As an alternative to be limited in all cases as provided above). Purchaser shall be deemed to have elected Purchaser's election to terminate this Agreement and receive back by reason of Seller's default, Purchaser shall have the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the followingright to: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature specifically enforce this Agreement and Seller's obligations hereunder; and (ii) seek actual damages, including, but not limited to, reasonable legal fees incurred by Purchaser by reason of Seller's default is such that upon obtaining such specific performance (excluding expenses incurred by Purchaser would receive materially less than Purchaser bargained for the due diligence investigations provided for in subparagraphs X, X, X, X, X, X, X, X and I of paragraph 10 of this Agreement, or (ii) Agreement and legal fees in connection with the court declines transactions contemplated by this Agreement prior to grant such specific performance for reasons other than the merits of PurchaserSeller's underlying claim of default).

Default by Seller. If the sale of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunderhereunder (other than the obligations which expressly survive termination, including without limitation any obligation of Seller under this Agreement to pay to Purchaser the Third Party Costs), or (b) to enforce specific performance of Seller's obligation to execute and deliver 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 hereunderobligations under this Agreement. Purchaser expressly waives and releases its rights to seek damages in the event of Seller's default hereunder; provided, however, (1) that if Seller's ’s default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available)above, then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS two percent ($250,000.002%) of the Purchase Price in the aggregate, or (ii) the amount of all direct, third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement Agreement, and the inspection, acquisition and financing of said Property ("THIRD-PARTY COSTS"the “Third Party Costs”); and (2) if Seller’s default does not constitute an Intentional Seller Default, but such default occurs after that date on which the Purchaser’s lender issues and the Purchaser accepts a rate lock agreement, and Purchaser makes the election in clause (a) above, then Purchaser shall also have the right to xxx Seller for money damages in an amount equal to the lesser of (i) Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), including due diligence costs, engineering and environmental review costs, and legal fees and expensesor (ii) one-half (1/2) of Purchaser’s Third Party Costs. In no event (except as provided in Section 5.3) shall Seller be liable for consequential, speculative, remote or punitive damages, or any other damages other than Third-Party Costs, and Purchaser hereby waives and releases any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Third-Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 last date upon which Closing was to could have occurred. "INTENTIONAL SELLER DEFAULT" “Intentional Seller Default” means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, results in Purchaser's ’s inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's ’s default or the failure of any condition to Closing to be satisfied. For purposes If the equitable remedy of this Section 6.2, specific performance shall be considered is not available due to an Intentional Seller Default, Purchaser if either (i) the nature of may seek any other right or remedy available at law or in equity; provided, however, that in no event shall Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default’s liability exceed $500,000.00.

Default by Seller. If If, on the sale Closing Date, any condition precedent to the obligation of Purchaser and General Partner to consummate the purchase of the Property hereunder has not been satisfied as contemplated hereunder is not consummated due a result of a breach by Seller of any of its representations or warranties in Section 7.2 or default by Seller in any material respect in the performance of any of its obligations under this Agreement or any other agreement or instrument delivered by Seller concurrently herewith or subsequent hereto, including, without limitation, its obligation to Seller's default hereunderdeliver any of the agreements or other instruments required to be delivered under Section 5.2, then the sole and exclusive remedy of Purchaser and General Partner shall be entitled, as its sole remedy for such default, either (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller's obligation to execute and deliver 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; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregatefile an action against Seller for specific performance, or (ii) terminate this Agreement by delivering written notice to Seller, in which event Purchaser shall be entitled to receive the amount Deposit together with interest earned thereon. In addition, (A) if Seller's default or breach consists of a deliberate action or omission by Seller prior to Closing in bad faith and in violation of any of Seller's covenants in this Agreement prior to Closing, (B) said action or omission frustrates in any material respect Purchaser's right or ability to close hereunder or negatively and materially impairs the value of the Property and (C) as a result of such action or omission Purchaser terminates this Agreement, Seller agrees that it will reimburse Purchaser for all third-party of Purchaser's and General Partner's reasonable out-of-pocket costs and expenses actually incurred by Purchaser in connection with preparation for the purchase of the Property contemplated herein. Except as set forth above, neither party to this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote have any further rights or punitive damages, or any damages obligations hereunder other than Third-Party Costsany arising under any section herein which expressly provides that it survives the termination of this Agreement. SELLER SPECIFICALLY CONFIRMS THAT IT WAS REPRESENTED BY COUNSEL WHO EXPLAINED, and Purchaser hereby waives any right to seek or collect any such consequentialAT THE TIME THIS AGREEMENT WAS MADE, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, THE CONSEQUENCES OF THE LIMITED RIGHTS CONTAINED IN THIS PARAGRAPH (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default.

Default by Seller. If In the sale event that Seller should fail to consummate the transaction contemplated by this Agreement for any reason, except as a result of Purchaser’s uncured default or the Property as permitted termination of this Agreement by Seller or Purchaser pursuant to any other provision of this Agreement, or if Purchaser fails to consummate the transaction contemplated hereunder is not consummated by this Agreement due to Seller's default hereunderthe failure of a condition precedent, then Purchaser shall be entitled, as its have the sole remedy for such default, either and exclusive options of (a) to receive terminating this Agreement and receiving the return of the Xxxxxxx MoneyMoney from Escrow Agent, which return shall operate (b) enforcing this Agreement through specific performance, or (c) waiving such default or failure and proceed to close title to the Property pursuant to this Agreement. In the event Purchaser chooses to terminate this Agreement, Purchaser shall give Escrow Agent notice of such termination and, subject to any escrow provisions contained in this Agreement and release Seller from or the provisions of any and all liability hereunderseparate escrow agreement, or (b) to enforce specific performance of Seller's obligation to execute and deliver Escrow Agent shall refund the documents required to convey the Property Xxxxxxx Money to Purchaser. Notwithstanding the foregoing, 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 Purchaser terminates this Agreement as a result of an uncured material default by Seller's default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) shall reimburse Purchaser up to Seventy- Five Thousand and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS 00/100 Dollars ($250,000.0075,000.00) in the aggregate, or (ii) the amount of all third-party for Purchaser’s actual out-of-pocket third party costs and expenses actually incurred by Purchaser in performing its inspections and investigations of the Property or otherwise in anticipation of consummating the transaction contemplated hereby (including sums expended in connection with the negotiation of this Agreement and procurement or attempted procurement of financing). Notwithstanding the foregoing, in the event specific performance is not an available remedy to Purchaser due solely to the fact that Seller has intentionally caused the Property ("THIRD-PARTY COSTS")to be conveyed to a bona fide third party purchaser for value, including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event Purchaser shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any have the right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money if Purchaser fails to file suit for specific performance take action against Seller for all damages available at law and in a court having jurisdiction in the county equity up to Five Million and state in which the Property is located, on or before sixty 00/100 Dollars (60) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law$5,000,000.00), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default.

Default by Seller. If In the sale event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either following: (a) to terminate this Agreement, in which event Purchaser will receive from the return of Escrow Agent the Xxxxxxx MoneyMoney Deposit, which return together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall operate not exceed Thirty-One Thousand Seven Hundred Sixty-Four Dollars and no/100 Cents ($31,764.00) and the aggregate reimbursement by Seller to terminate Purchaser under this Agreement and release the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Reimbursement Cap”); whereupon Seller from any and all liability hereunderPurchaser 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 ’s obligation to execute and deliver 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 ’s default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). 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, located on or before sixty thirty (6030) days following the date upon which Scheduled Closing was to have occurredDate. "INTENTIONAL SELLER DEFAULT" means 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 one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultTermination Surviving Obligations.

Default by Seller. If In the event that Seller defaults in its obligation to consummate the sale of the Property as contemplated hereunder is not consummated due Sale Interests to Seller's default hereunderPurchaser on the Closing Date in accordance with this Agreement, then Purchaser shall be entitledmay, as its Purchaser’s sole remedy for such defaultand exclusive remedy, elect either of the following: (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement by delivery of notice of termination to Seller, in which event (i) Purchaser shall receive from the Escrow Agent the Down Payment, and release (ii) Purchaser shall be entitled to recover from Seller from any its actual out of pocket third party costs and all liability hereunderexpenses incurred in connection with the transaction contemplated herein, which costs and expenses shall in no event exceed $1,000,000, whereupon Seller and Purchaser shall have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations; (b) to enforce bring an action against Seller for specific performance of Seller's such obligation (and file a lis pendens against the Real Property in connection therewith); or (c) to execute waive such default and deliver proceed to Closing without adjustment of the documents required to convey Purchase Price; and in any such event, Purchaser hereby waives all other remedies, including any claim against Seller for damages of any type or kind including consequential, special, incidental and punitive damages. Notwithstanding the Property to Purchaserforegoing, 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; provided, however, that (i) if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available)available to Purchaser due to Seller’s default under this Agreement during the period prior to the Closing in a manner that precludes Purchaser from acquiring the Sale Interests in accordance with this Agreement, then Purchaser shall also have the right to xxx make a claim against Seller for money Purchaser’s actual damages (excluding special, indirect, consequential and punitive damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or arising from Seller’s default and (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser nothing contained in connection with this Agreement and the Property ("THIRD-PARTY COSTS")Section 13.1 shall limit Purchaser’s remedies at law, including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote in equity or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as herein provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means event of a breach by Seller of any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or Closing Surviving Obligations after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default Closing or the failure of any condition to Closing to be satisfiedTermination Surviving Obligations after termination. For purposes This Section 13.1 shall survive the termination of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default.

Default by Seller. If the sale of the Property as contemplated hereunder is not consummated due to Seller's ’s default hereunder, then Purchaser shall have the right to (i) seek to obtain specific performance of Seller’s obligations hereunder, provided that any action for specific performance shall be entitled, as its sole remedy for commenced within sixty (60) days after such default, either and if Purchaser prevails thereunder, Seller shall reimburse Purchaser for all reasonable, actual legal fees, court costs and all other reasonable, actual costs of such action or (aii) terminate this Agreement and to receive the return of the Xxxxxxx Exxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunderhereunder and to recover Purchaser’s costs and expenses incurred and paid to third parties in the investigation of the Property, not to exceed Fifty Thousand and 00/100 Dollars ($50,000.00) (the “Inspection Costs”).) (the “Inspection Costs”). In the event Purchaser elects to exercise option (ii) above, It is agreed between the parties hereto that the actual damages to Purchaser in the event of such default are impractical to ascertain and the amount of the Exxxxxx Money and the Inspection Costs is a reasonable estimate thereof, Purchaser hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Purchaser’s right to receive the Exxxxxx Money and the Inspection Costs is intended not as a penalty, but as full liquidated damages. The right to receive the Exxxxxx Money and the Inspection Costs as full liquidated damages is Purchaser’s sole and exclusive remedy in the event of Purchaser exercising option (ii) above in the event of default hereunder by Seller, and Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) sue Seller: (a) for specific performance of this Agreement, or (b) to enforce specific performance recover any damages of Seller's obligation to execute and deliver any nature or description other than or in excess of 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; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement Exxxxxx Money and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expensesInspection Costs. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) sue Purchaser or seek or collect any such consequential, speculative, remote or punitive damages, claim a refund of the Exxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Purchaser’s actual damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above)or that its retention by Purchaser constitutes a penalty and not agreed upon and reasonable liquidated damages. In the event Purchaser shall be deemed to have elected elects to terminate this Agreement and receive back the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more return of the following: Deposit pursuant to sub-clause (aii) fraudulent misrepresentationof the immediately preceding sentence, (b) criminal conduct (i.e. conduct then upon such return and delivery, this Agreement shall terminate and neither party hereto shall have any further obligations hereunder except for those that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated are expressly provided in this Agreement for a reason other than Purchaser's default or to survive the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaulttermination hereof.

Default by Seller. If the sale of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either (a) to receive In the return event the Closing of the Xxxxxxx Money, which return shall operate to terminate this Agreement purchase and release Seller from sale transaction provided for herein does not occur as herein provided by reason of any and all liability hereunder, or (b) to enforce specific performance default of Seller, Purchaser may, as Purchaser's obligation sole and exclusive remedy, elect by notice to execute and deliver Seller within thirty (30) days following the documents required to convey scheduled Closing Date, either of 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; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of following: (i) TWO HUNDRED FIFTY THOUSAND DOLLARS terminate this Agreement, in which event Purchaser will receive from the Title Company the Earnest Money Deposit ($250,000.00) in and the aggregateIndependent Consideration shall be paid xx Xxxler), or (ii) the amount of all third-party and Seller shall reimburse Purchaser for its actual out-of-pocket costs (including, without limitation, reasonable attorneys' fees and expenses actually costs) incurred by Purchaser in connection with the transaction contemplated in this Agreement in an amount not to exceed $100,000.00, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Property Termination Surviving Obligations; or ("THIRD-PARTY COSTS")ii) seek to enforce specific performance of the Agreement, and in either event, Purchaser hereby waives all other remedies, including due diligence costswithout limitation, engineering and environmental review costsany claim against Seller for damages of any type or kind including, and legal fees and expenses. In no event shall Seller be liable for consequentialwithout limitation, speculative, remote consequential or punitive damages, or any damages other than Third-Party Costs, and . Failure of Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs make the foregoing election within the foregoing thirty (such Third Party Costs to be limited in all cases as provided above). Purchaser 30) day period shall be deemed to have elected an election by Purchaser to terminate this Agreement and receive back from the Xxxxxxx Title Company the Earnest Money if Deposit, whereupon Seller and 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 will have no furxxxx xxghts or before sixty (60) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony obligations under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) except with respect to the court declines to grant such specific performance for reasons other than Termination Surviving Obligations. Notwithstanding the merits of foregoing, nothing contained in this Section 13.1 will limit Purchaser's underlying claim remedies at law, in equity or as herein provided in the event of defaulta breach by Seller of any of the Closing Surviving Obligations after Closing or the Termination Surviving Obligations after termination.

Default by Seller. If Subject to the sale terms of Section 17, in the Property as contemplated hereunder event that Closing is not consummated due to the inability, failure or refusal of Seller to perform the material obligations of Seller hereunder and are not waived by Purchaser, and are not cured by Seller's default hereunder, then Purchaser Purchaser’s sole remedy shall be entitledto elect either of the following, as its sole remedy for such default, either by promptly delivering Notice to Seller: (a) to receive the return of terminate this Agreement, in which event Escrow Agent shall immediately refund the Xxxxxxx MoneyMoney to Purchaser, which return and Purchaser shall operate be entitled to terminate this Agreement and release Seller from any and all liability retain the Xxxxxxx Money as Purchaser’s sole remedy hereunder, and thereafter no party shall have any further rights, claims or liabilities hereunder except those provisions which by their express terms survive the termination of this Agreement; or (b) to pursue and enforce specific performance of Seller's obligation to execute and deliver the documents required to convey the Property to Purchaser, it being understood and agreed that the remedy of specific performance against Seller, but Purchaser shall not be available entitled to enforce pursue or collect any actual, consequential or other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of whatsoever from Seller's default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of unless specific performance is not available), then Purchaser shall also have the right available due to xxx Seller for money damagesSeller’s intentional default, in an amount equal which case Purchaser can avail itself of actual, but not consequential, damages from Seller. Subject to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) Section 17, in the aggregateevent that any of the Seller Representations prove materially untrue after the Effective Date and are not waived by Purchaser, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser Seller fails to perform any covenants that result in connection with this Agreement and a material adverse effect on the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costsare not waived by Purchaser, and legal fees and expensesare not cured by Seller, the Purchaser’s sole remedy shall be to claim actual monetary damages; within six (6) months after the date of Closing. In no event shall Seller Purchaser be liable for consequential, speculative, remote or punitive damages, entitled to consequential or any other damages whatsoever other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any actual damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultincurred.

Default by Seller. If the sale of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either (a) to receive the return of the Xxxxxxx MoneyExxxxxx Money and reimbursement of the amount of all direct third party out-of-pocket costs and expenses actually incurred, and documented by paid invoices and evidence of payment, by Purchaser in connection with this Agreement, including reasonable attorneys' fees, and the inspection, acquisition and financing of the Property, including, without limitation, any forfeited good faith and/or rate lock deposits, which return and reimbursement shall operate to terminate this Agreement and release Seller from any and all liability hereunder, (b) waive the default by Seller and close the purchase notwithstanding the default by Seller, or (bc) to enforce specific performance of Seller's obligation to execute and deliver 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 perform its rights to seek damages in the event of Seller's default obligations as contained hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes in the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of event specific performance is not availableunavailable as a remedy to Purchaser because of Seller's intentional acts (such as conveying the Property to a third party prior to Closing), then Purchaser shall also have the right be entitled to xxx bring an action against Seller for money damagesits actual damages (i.e. for the benefit of Purchaser's bargain) .For purposes of clarity, if Seller sells the Property to a third party in an amount breach of this Agreement then specific performance would not be available as a remedy and the Purchaser's recoverable damages under sub-clause (c) above would be equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in purchase price Seller received minus the aggregate, or (ii) the amount of all third-party out-of-pocket costs Purchase Price. Purchaser waives and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives releases any right to seek or collect any such consequential, speculative, remote or punitive damages, or (and hereby covenants that it shall not) sxx Seller to recover any damages of any nature or description other than Third-Party Costs (such Third Party Costs to be limited as set forth in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available . This Section 6.2 is subject to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultSection 6.4 hereof.

Default by Seller. If In the sale event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either following: (a) to terminate this Agreement, in which event Purchaser will receive from the return of Escrow Agent the Xxxxxxx MoneyMoney Deposit, which return together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall operate not exceed One Hundred Forty-Seven Thousand Five Hundred Eleven Dollars and no/100 Cents ($147,511.00) and the aggregate reimbursement by Seller to terminate Purchaser under this Agreement and release the Other P&S Agreements shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Reimbursement Cap”); whereupon Seller from any and all liability hereunderPurchaser 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 ’s obligation to execute and deliver 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 ’s default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). 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, located on or before sixty thirty (6030) days following the date upon which Scheduled Closing was to have occurredDate. "INTENTIONAL SELLER DEFAULT" means 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 one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultTermination Surviving Obligations.

Default by Seller. If In the sale event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either following: (a) to terminate this Agreement, in which event Purchaser will receive from the return of Escrow Agent the Xxxxxxx MoneyMoney Deposit, which return shall operate together with all interest accrued thereon, and reimbursement from Seller of Purchaser’s reasonable out of pocket costs and expenses payable to terminate third parties in connection with this transaction; provided, however, that the reimbursement by Seller to Purchaser under this Agreement shall not exceed Fifty-Eight Thousand Four Hundred Ninety-One Dollars and release no/100 Cents ($58,491.00) (the “Reimbursement Cap”); whereupon Seller from any and all liability hereunderPurchaser 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 ’s obligation to execute and deliver 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 ’s default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). 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, located on or before sixty thirty (6030) days following the date upon which Scheduled Closing was to have occurredDate. "INTENTIONAL SELLER DEFAULT" means 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 one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultTermination Surviving Obligations.

Default by Seller. If the sale of the Property as contemplated hereunder is not consummated due Seller defaults under this Agreement at or prior to Seller's default hereunderClosing in any material respect, then Purchaser Buyer shall be entitled, as its sole remedy for such defaultremedy, either (a) to receive the return of the Xxxxxxx Money, whereupon Seller shall reimburse Buyer for all out-of-pocket costs and expenses incurred by Buyer in connection with this Agreement, which return and reimbursement shall operate to terminate this Agreement and release Seller from any and all liability hereunder other than those obligations which expressly survive termination hereunder, or (b) to enforce specific performance of Seller's ’s obligation to execute and deliver the documents required to convey the Property to PurchaserBuyer, 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; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser Buyer shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money and reimbursement for Buyer’s out-of-pocket costs and expenses if Purchaser Buyer 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 the date which is thirty (6030) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means As material consideration to Seller’s entering into this Agreement with Buyer, Buyer expressly waives any one right under statutory or more common law or otherwise to record or file a lis pendens or a notice of pendency of action or similar notice against all or any portion of the following: Property unless (ai) fraudulent misrepresentation, all conditions precedent to Seller’s obligation to proceed to Closing have been satisfied (bother than payment of the Purchase Price) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended defaults in its obligation to result inproceed to Closing, and does result in(ii) Buyer timely files an action for specific performance in accordance with this Section 6.2. Any attempt by Buyer to file a lis pendens or notice of pendency in violation of this Section 6.2 shall be null and void ab initio. Buyer shall indemnify, Purchaser's inability to consummate the transaction contemplated defend and hold Seller harmless from and against all claims, liabilities, costs and expenses (including, without limitation, court costs and reasonable attorneys’ fees) arising out of Buyer’s filing (or attempted filing) of a lis pendens or notice of pendency in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes breach of this Section 6.2, specific performance . The provisions of this Section 6.2 shall be considered not available to Purchaser if either (i) survive the nature termination of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default.

Default by Seller. If the sale Seller defaults in any of the Property as contemplated hereunder is not consummated due its obligations under this Agreement to Seller's default hereunderbe performed at or prior to Closing, then Purchaser shall be entitled, as its sole remedy for such defaultremedy, either (a) to receive the return of the Xxxxxxx MoneyDeposit from Escrow Agent, and in the case of a material default by Seller, Seller shall also pay to Purchaser all actual out-of-pocket expenses incurred by Purchaser in connection with this transaction, provided that such reimbursement of out-of-pocket expenses shall not exceed the sum of $100,000 in the aggregate, which return and reimbursement, if applicable, shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller's ’s obligation to execute and deliver the documents required to convey the Property to PurchaserPurchaser in accordance with this Agreement. Except as set forth above, 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 WAIVES AND RELEASES its rights to seek damages in the event of Seller's ’s default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives WAIVES AND RELEASES any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and to receive back a return of the Xxxxxxx Money Deposit from Escrow Agent and, if applicable, the reimbursement of Purchaser’s actual, out-of-pocket expenses 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 date upon which the Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default.

Default by Seller. If In the sale event that Seller fails to perform any of its obligations under this Agreement for any reason other than Purchaser’s default or the Property permitted termination of this Agreement by Seller or Purchaser as contemplated hereunder is not consummated due to Seller's default hereunderherein expressly provided, then Purchaser shall be entitled, as its sole and exclusive remedy for such defaultat law or in equity, either (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement by written notice to Seller in which case the Xxxxxxx Money shall be returned to Purchaser and release Seller from neither party hereto shall have any and all further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability hereunderset forth herein expressly survives termination of this Agreement, or (b) to enforce specific performance of Seller's ’s obligation to execute and deliver 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 and obtain damages in the event of Seller's ’s default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in terminates this Agreement pursuant to clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available)this Section 6.2, then Seller shall promptly reimburse Purchaser shall also have the right to xxx Seller for money damagesits actual, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party documented out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property transaction contemplated hereunder, not to exceed Fifty Thousand and No/100 Dollars ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above$50,000.00). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 one hundred twenty (60120) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default.

Default by Seller. If Seller defaults hereunder in any material respect, or if any of Seller’s representations and warranties hereunder are not are not true and correct in all material respects on the sale of the Property as contemplated hereunder is not consummated due Effective Date, and Seller fails to Seller's cure such default hereunderor breach within five (5) business days after Purchaser provides Seller with written notice thereof, then Purchaser shall be entitled, as its sole remedy for such defaultand exclusive remedy, either (a) to receive the return of the Xxxxxxx MoneyDeposit and reimbursement from Seller of Purchaser’s out-of-pocket costs paid in connection with the transactions hereunder (such reimbursement not to exceed Three Hundred Thousand and No/100 Dollars ($300,000.00) in the aggregate) (which reimbursement obligation shall survive the termination of this Agreement), which return and reimbursement shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller's ’s obligation to execute and deliver the documents required to convey the Property to PurchaserPurchaser 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. Purchaser expressly waives its rights to seek damages in the event of Seller's ’s default hereunderhereunder (other than the reimbursement of Purchaser’s costs as provided in the clause (a) of the immediately preceding sentence); provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available)available due to Seller having sold or conveyed the Property to another party, then Purchaser shall also have the there will be no limit Purchaser’s right to xxx Seller for money damages hereunder, including, without limitation, consequential damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money Deposit and reimbursement of its costs 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 thirty (6030) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default.

Default by Seller. If In the event the sale of the Property as contemplated hereunder is not consummated due to because of the default of Seller's default hereunder, then Purchaser shall be entitledBuyer may, as its sole and exclusive remedy for such default, either (ai) terminate this Agreement by written notice to receive Seller and Escrow Holder, in which event the Xxxxxxx Money Deposit shall be immediately returned to Buyer and Seller shall reimburse Buyer for the reasonable out-of-pocket expenses incurred by Buyer solely in connection with this Agreement from the Effective Date until notice of Seller’s default (the “Reimbursable Costs”), not to exceed Fifteen Thousand and 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 and other costs and expenses which Buyer may incur in connection with Buyer’s enforcement of this Section 16.1. Except for the return of the Xxxxxxx MoneyMoney Deposit and Buyer’s Reimbursable Costs as provided above, which return Seller shall operate in no event be liable to terminate this Agreement and release Seller from Buyer for any and all liability hereunderactual, punitive, speculative, consequential or (b) to enforce specific performance of Seller's obligation to execute and deliver other damages. Notwithstanding the documents required to convey foregoing, nothing contained herein shall limit the Property to Purchaser, it being understood and agreed that the remedy of specific performance remedies Buyer shall not be available have to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event of Seller's default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money if Purchaser fails to file suit for specific performance it has against Seller in a court having jurisdiction in under the county indemnity provisions of Sections 13 and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default34.

Default by Seller. If Notwithstanding anything herein to the sale of the Property as contemplated hereunder is not consummated due to Seller's default hereundercontrary, then Purchaser shall be entitled, as its sole remedy for such default, either if Seller (a) to receive the return had actual knowledge that any of the Xxxxxxx Money, which return shall operate representations and warranties set forth in Section 11.1 hereof were untrue as of the Effective Date and the failure of any such representation or warranty to terminate this Agreement and release Seller from any and all liability hereunderbe true would have a “material adverse impact” (as such term is defined in Section 11.1 hereof) on the Property, or (b) to enforce specific performance of Seller's obligation to execute and deliver 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 defaults in its obligations expressly waives its rights to seek damages stated in the event of Seller's default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available)this Agreement, then Purchaser Buyer’s sole and exclusive remedy shall also have be to elect one of the right to xxx Seller for money damages, in an amount equal to the lesser of following: (i) TWO HUNDRED FIFTY THOUSAND DOLLARS to terminate this Agreement, in which event Buyer shall be entitled to the return by the Escrow Holder to Buyer of the Deposit and Seller shall reimburse Buyer for Buyer’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 due diligence investigations and negotiation and execution of this Agreement, not to exceed One Hundred Thousand Dollars ($250,000.00100,000.00) in the aggregate, or (ii) the amount if Seller’s breach arises out of all third-party out-of-pocket costs its failure to sell and expenses actually incurred by Purchaser in connection with this Agreement and convey the Property ("THIRD-PARTY COSTS")to Buyer on the Closing Date, including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money if Purchaser fails to file bring a suit for specific performance against for such breach provided that any suit for specific performance must be brought as to the Property within 45 days of Seller’s default, Buyer’s waiving the right to bring suit at any later date to the extent permitted by law; provided further, however, to the extent that Seller in a court having jurisdiction cause Buyer’s remedy of specific performance to be unavailable due to Seller’s selling the Property to another third-party 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 county Property to Buyer and state Buyer agrees not to file a lis pendens or other similar notice against the Real Property except in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result inconnection with, and does result inafter, Purchaser's inability to consummate the transaction contemplated proper filing of a suit for specific performance. Nothing in this Agreement for a reason Section 13.2 shall prevent or preclude any recovery of attorneys’ fees or other than Purchaser's default or the failure of any condition costs incurred by Buyer pursuant to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default15.5.

Default by Seller. If Seller recognizes that, in the sale event Seller defaults in the performance of its obligations under this Agreement and Buyer is entitled to terminate this Agreement pursuant to Section 16.1(a) hereof, monetary damages alone will not be adequate. Buyer shall therefore be entitled in such event to obtain specific performance by Seller of the Property as contemplated hereunder terms of this Agreement. In any action to specifically enforce the provisions of this Agreement, Seller shall waive the defense that there is an adequate remedy at law or equity and agrees that Buyer shall have the right to obtain specific performance of the terms of this Agreement without being required to prove actual damages, post bond or furnish other security. As a condition to seeking specific performance, Buyer shall not consummated due be required to Seller's default hereunderhave tendered the Purchase Price specified in Section 2.1 of this Agreement, then Purchaser but shall be required to demonstrate that it is willing and able to do so and to perform its other closing obligations in all respects. If Buyer pursues the remedy of specific performance, Buyer acknowledges and agrees that it shall not be entitled, as its sole remedy for such defaultthereafter, either (ato pursue any claims against Seller with respect to any default(s) which gave rise to receive Buyer’s right to terminate the return Agreement or seek specific performance. In lieu of seeking specific performance of this Agreement, Buyer shall have the Xxxxxxx Money, which return shall operate right to terminate this Agreement and release Seller from Buyer shall be entitled to payment of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) as liquidated damages in full settlement of any and all liability hereunder, damages of any nature or (b) kind that Buyer may suffer or allege to enforce specific performance of Seller's obligation to execute and deliver suffer as the documents required to convey the Property to Purchaser, it being result thereof. It is understood and agreed that the amount of liquidated damages represents Buyer’s and Seller’s reasonable estimate of actual damages and does not constitute a penalty. Recovery of liquidated damages under this Section 18.1 shall be the sole and exclusive remedy of specific performance Buyer against Seller for breach of or failure to consummate this Agreement and shall not be available applicable regardless of the actual amount of damages sustained. In addition, in either circumstance, Buyer shall be entitled to enforce any other obligation of obtain from Seller hereunder. Purchaser expressly waives court costs and reasonable attorneys’ fees incurred by it in enforcing its rights to seek damages in hereunder, plus interest at the event of Seller's default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) Prime Rate on the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money if Purchaser fails to file suit for specific performance judgment obtained 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 from the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of default until the date of payment of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultjudgment.

Default by Seller. If Seller shall breach in any material respect of its obligations hereunder to be performed by Seller prior to or at the sale Closing, or willfully causes the failure of 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 Property as contemplated hereunder is not consummated due to Seller's default hereunderprovisions hereof, then Purchaser shall be entitledBuyer, as its sole remedy for such defaultand exclusive remedies, either may either: (ai) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement by written notice to Seller and release Seller from Escrow Agent, whereupon this Agreement shall be terminated and neither party shall have any and all liability hereunder, or (b) to enforce specific performance of Seller's obligation to execute and deliver further obligations hereunder other than 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; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damagesSurviving Obligations, in an amount equal which case Buyer shall receive a refund of the Deposit, and Seller shall reimburse Buyer for Buyer’s 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 lesser termination of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, this Agreement; or (ii) initiate and 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 amount contrary, if Buyer has funded the balance of all third-party out-of-pocket costs and expenses actually incurred by Purchaser the Purchase Price at Closing in connection accordance with this Agreement and Seller has defaulted, Buyer shall, if entitled, be promptly returned the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or balance of the Purchase Price from escrow; provided that in connection with any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money if Purchaser fails to file suit action for specific performance against Seller in a brought by Buyer, Buyer shall provide proof of immediately available funds or post any bond that may be required by the court having jurisdiction or applicable law, in the county and state in which the Property is located, on or before sixty (60) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more amount of the following: (a) fraudulent misrepresentationbalance of the Purchase Price, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is connection with such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultaction.

Default by Seller. If In the sale of event that a Seller defaults in its obligation to consummate the Property as contemplated hereunder is not consummated due to Seller's default hereunderClosing, then Purchaser shall be entitled, as its sole remedy for such defaultremedy, either (a) to receive the return of the Xxxxxxx Money, and prompt reimbursement from Sellers of the direct and actual reasonable out-of-pocket due diligence costs and expenses incurred by Purchaser to third parties that are not affiliated with Purchaser (documented by invoices received by Purchaser from such third parties) in connection with this transaction, not to exceed $250,000 in the aggregate, which return and reimbursement shall operate to terminate this Agreement in its entirety and release Seller Sellers from any and all liability hereunder, or (b) to enforce specific performance of such Seller's obligation to execute ’s obligations hereunder (without abatement, credit against or reduction of the Purchase Price). Except as set forth in clause (a) above and deliver in the documents required to convey the Property to Purchaserlast sentence of this Section 6.2, 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 any damages in the event of a Seller's ’s default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money and reimbursement for its actual reasonable out-of-pocket due diligence costs and reasonable expenses not to exceed $250,000 in the aggregate, 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 thirty (6030) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means occurred (and Purchaser irrevocably waives any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or right to file suit for specific performance after the Effective Date that is intended end of such 30-day period). Notwithstanding anything herein to result inthe contrary, and does result in, Purchaser's inability to consummate if the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure equitable remedy of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered is not available to because a Seller is not the owner of a Property, but for no other reason, Purchaser if either (i) the nature of Seller's may seek any other right or remedy available at law or in equity that it may have against Sellers hereunder for such default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreementhereunder, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultincluding monetary damages, but excluding special, consequential and punitive damages.

Default by Seller. If the sale of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunderhereunder (other than the obligations which expressly survive termination, including without limitation any obligation of Seller under this Agreement to pay to Purchaser the Third Party Costs), or (b) to enforce specific performance of Seller's obligation to execute and deliver 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 hereunderobligations under this Agreement. Purchaser expressly waives and releases its rights to seek damages in the event of Seller's default hereunder; provided, however, that if Seller's ’s default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available)above, then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS two percent ($250,000.002%) of the Purchase Price in the aggregate, or (ii) the amount of all direct, third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and/or the Loan Assumption, and the inspection, acquisition and financing of said Property ("THIRD-PARTY COSTS"the “Third Party Costs”), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event (except as provided in Section 5.3) shall Seller be liable for consequential, speculative, remote or punitive damages, or any other damages other than Third-Party Costs, and Purchaser hereby waives and releases any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Third-Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 last date upon which Closing was to could have occurred. "INTENTIONAL SELLER DEFAULT" “Intentional Seller Default” means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, results in Purchaser's ’s inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's ’s default or the failure of any condition to Closing to be satisfied. For purposes If the equitable remedy of this Section 6.2, specific performance shall be considered is not available due to an Intentional Seller Default, Purchaser if either (i) the nature of may seek any other right or remedy available at law or in equity; provided, however, that in no event shall Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of default’s liability exceed $500,000.00.

Default by Seller. If the sale of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitledBuyer may elect, as its Buyer's sole remedy for such defaultand exclusive remedy, either to: (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement and release Seller from receive a refund of the Deposit and reimbursement of buyer’s actual and demonstrable out of pocket costs and expenses (including reasonable attorneys’ fees) incurred in connection with Buyer’s due diligence investigations and the negotiation and execution of this Agreement up to a maximum aggregate amount of such costs and expenses of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00), in which event neither party shall have any further rights or obligations hereunder, except as provided in Section 3.1(b) above, and all liability hereunderSection 9.2 and Section 9.9 below, or (b) to enforce specific performance of Seller's obligation this Agreement. Notwithstanding the foregoing and anything to execute and deliver the documents required to convey the Property to Purchasercontrary in this Agreement, it being understood and agreed that if the remedy of specific performance shall of this Agreement is not be available due to enforce any other obligation of Seller hereunder. Purchaser expressly waives its rights to seek damages in the event an intentional action of Seller's default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser Buyer shall also have the right to xxx pursue a suit against Seller for money damages, Buyer’s actual damages (which shall not be subject to any limitation on Seller’s liability set forth in an amount equal this Agreement). Subject to the lesser foregoing, Buyer shall not have any other rights or remedies hereunder as a result of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) any default by Seller prior to Closing, and Buyer hereby waives any other such remedy as a result of a default hereunder by Seller. If Buyer is required to take any action to enforce the foregoing provisions of this Section 6.1, and Buyer is the prevailing party in such action, then Buyer shall, notwithstanding the aggregateforegoing provisions of this Section 6.1, or (ii) the amount of be entitled to recover all third-party actual out-of-pocket costs and expenses actually incurred by Purchaser Buyer in connection with this Agreement and the Property ("THIRD-PARTY COSTS")course of such enforcement, including due diligence costsin accordance with Section 9.5 below. Further, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated nothing contained in this Agreement for a reason other than PurchaserSection 6.1 shall restrict Buyer's default ability to pursue any rights or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2remedies it may have against Seller, specific performance nor shall be considered not available to Purchaser if either (i) the nature of it limit Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in liability, with respect to those obligations which expressly survive the termination of this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaserincluding, without limitation, Seller's underlying claim of defaultindemnity obligations under Section 9.2 hereof.

Default by Seller. If In the sale event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default hereunder or the permitted termination of the Property this Agreement by Seller or Purchaser as contemplated hereunder is not consummated due to Seller's default hereunderherein expressly provided, then Purchaser shall be entitled, as its sole remedy for such defaultremedy, either (a) to receive (1) reimbursement from Seller of Purchaser’s documented out-of-pocket third party transaction costs in an amount not to exceed Fifty Thousand and NO/100 Dollars ($50,000.00) and (2) the return of the Xxxxxxx Money, which return and reimbursement shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller's ’s obligation to execute and deliver the documents required to convey the Property to PurchaserPurchaser (or, if specific performance has been made impossible or impracticable due solely as a result of Seller’s sale of the Property to another purchaser, actual damages in an amount not to exceed One Million Dollars and NO/100 ($1,000,000.00)), 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 set forth in the preceding sentence, Purchaser expressly waives its rights to seek damages in the event of Seller's ’s default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money proceed under clause (i) above if Purchaser fails to file suit for specific performance (or damages, if appropriate pursuant to the terms of this Section 6.2) against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty fifteen (6015) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that The foregoing is not intended to result inlimit Seller’s obligations under Section 10.24 hereof. Seller acknowledges that the Property is unique in nature, notwithstanding the fact that it may be investment property. Accordingly, if Seller breaches this Agreement and does result inPurchaser seeks specific performance as a remedy, Seller shall not challenge specific performance based upon the fact that the Property is not unique in nature (including, without limitation, because the Property is or may be investment property) or because other adequate remedies may be available to Purchaser's inability . Seller further acknowledges that Purchaser agreed to consummate the transaction contemplated limitations on Purchaser’s remedies set forth in this Agreement for a reason other than Purchaser's default or the failure Section 6.2 in consideration of any condition Seller’s agreement to Closing to be satisfied. For purposes of this Section 6.2, not challenge specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultas set forth herein.

Default by Seller. If In the sale event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser's sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, either of the Property as contemplated hereunder is not consummated due to Seller's default hereunder, then Purchaser shall be entitled, as its sole remedy for such default, either following: (a) 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 return of Escrow Agent the Xxxxxxx MoneyMoney Deposit, which return shall operate together with all interest accrued thereon, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to terminate this Agreement and release Seller from any and all liability hereunder, the Termination Surviving Obligations; or (b) seek to enforce specific performance of Seller's obligation to execute and deliver the documents required to convey the Property to Purchaser, 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 any other obligation obligations of Seller hereunder). Notwithstanding the forgoing, if Purchaser elects to terminate this Agreement pursuant to clause (a) above, or is deemed to have so terminated this Agreement, on account of Seller voluntarily having transferred title to the Real Property to a third party in willful violation of this Agreement and thereby rendering specific performance unobtainable, then Purchaser shall have the right to seek, in addition to the $75,000.00 of out-of-pocket transaction costs, any actual direct damages (which, for the avoidance of doubt, shall include the amount by which the 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 such transaction costs and damages shall not exceed an amount equal to the Xxxxxxx Money Deposit. Purchaser expressly waives its rights to seek damages in the event of Seller's default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (except as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) expressly set forth in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above)preceding sentence. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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, located on or before sixty (60) days following the date upon which Scheduled Closing was to have occurredDate. "INTENTIONAL SELLER DEFAULT" means 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 for a breach by Seller of any one or more of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), Termination Surviving Obligations or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultSurviving Obligations.

Default by Seller. If the sale of the Property as contemplated hereunder to Purchaser is not consummated due to Seller's ’s default hereunderunder this Agreement and Purchaser was ready, willing and able to close (provided, however, that Purchaser shall not be required to actually deposit its funds into Escrow), then Purchaser shall be entitled, entitled to elect one of the following as its sole remedy for such default, either and exclusive remedy: (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunderby written notice to Seller, in which event (i) Escrow Agent or (b) to enforce specific performance of Seller's obligation to execute and deliver , as applicable, shall return the documents required to convey the Property Deposit 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; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of Seller shall reimburse Purchaser for all third-party actual out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS")transaction contemplated herein, including due diligence costs, engineering and environmental review costscapped at, and legal fees not to exceed, the sum of Five Million Dollars ($5,000,000); and expenses(iii) neither Purchaser nor Seller shall have any further liabilities or obligations hereunder except for obligations which expressly survive the termination of this Agreement; (b) waive the condition and proceed to close the transaction without reduction in the Purchase Price, in which event Seller shall have no liability or obligation to Purchaser with respect to such condition; or (c) bring an action Seller for specific performance. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and As a condition precedent to Purchaser hereby waives exercising any right it may have to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money if Purchaser fails to file suit bring an action for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is locatedhereunder, on or before Purchaser must commence such an action within sixty (60) days following after the date upon which Closing was occurrence of Seller’s default. Purchaser agrees that its failure to have occurredtimely commence such an action for specific performance within such sixty (60) day period shall be deemed a waiver by it of its right to commence an action for specific performance. "INTENTIONAL SELLER DEFAULT" means any one or more Notwithstanding anything to the contrary hereinabove, if the remedy of specific performance is legally unavailable through no fault of Purchaser, then the amount of the following: cap on Purchaser’s recovery of actual out-of-pocket costs and expenses in accordance with clause (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable lawa)(ii), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated above. Except as expressly stated in this Agreement for Section 12.2, Purchaser waives all further rights to any monetary recovery following a reason default by Seller, including without limitation, the right to receive actual compensatory, consequential, lost profit, punitive or other than Purchaser's default or the failure damages it may have on account of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreementby Seller hereunder, or (ii) the court declines any equitable accounting coincident to grant such any order of specific performance for reasons other than the merits of Purchaser's underlying claim of defaultperformance.

Default by Seller. If Seller fails to consummate the sale of the Property as contemplated hereunder is not consummated due for any reason other than Purchaser’s default or the failure of a condition of Seller’s obligation to Seller's default hereunderClosing to be met or the permitted termination of this Agreement by Seller or Purchaser as herein expressly provided, then Purchaser shall be entitled, as its sole remedy for such defaultremedy, either (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller's ’s obligation to execute and deliver 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; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one If specific performance would not be an effective remedy as the result of Seller’s default or more as a result of a breach of a warranty or representation, Purchaser may, in lieu of specific performance (but not in lieu of the following: (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable lawreturn of the Xxxxxxx Money), or have Seller reimburse Purchaser for all of its actual, third-party, documented costs and expenses in (cincluding, without limitation, reasonable legal fees and financing costs and fees) an intentional in connection with pursuing, negotiating and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the performing diligence in connection with this transaction contemplated in this Agreement for a reason other than Purchaser's default or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to Purchaser if either (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained for in this Agreement, up to Two Hundred Thousand Dollars ($200,000.00) in the aggregate; provided, that if specified performance is unavailable because Seller has sold the Property to a third party in violation of this Agreement, Purchaser shall be permitted to xxx Seller for direct and actual damages (but not consequential or (ii) the court declines to grant such specific performance for reasons other than the merits of Purchaser's underlying claim of defaultpunitive damages).

Default by Seller. If In the sale event that Seller fails to consummate this Agreement for any reason other than Purchaser’s default or the permitted termination of the Property this Agreement by Seller or Purchaser as contemplated hereunder is not consummated due to Seller's default hereunderherein expressly provided, then Purchaser shall be entitled, as its sole remedy for such defaultremedy, either (a) to receive the return of the Xxxxxxx Money, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, or (b) to enforce specific performance of Seller's ’s obligation to execute and deliver 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 ’s default hereunder; provided, however, that if Seller's default constitutes an Intentional Seller Default (as hereinafter defined) and Purchaser makes the election described in clause (a) above (or Purchaser makes the election in clause (b) but the remedy of specific performance is not available), then Purchaser shall also have the right to xxx Seller for money damages, in an amount equal to the lesser of (i) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate, or (ii) the amount of all third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the Property ("THIRD-PARTY COSTS"), including due diligence costs, engineering and environmental review costs, and legal fees and expenses. In no event shall Seller be liable for consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs, and Purchaser hereby waives any right to seek or collect any such consequential, speculative, remote or punitive damages, or any damages other than Third-Party Costs (such Third Party Costs to be limited in all cases as provided above). Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money 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 thirty (6030) days following the date upon which Closing was to have occurred. "INTENTIONAL SELLER DEFAULT" means any one or more of Notwithstanding the following: foregoing, (a) fraudulent misrepresentation, (b) criminal conduct (i.e. conduct that constitutes a felony under applicable law), or (c) an intentional and deliberate act of Seller taken on or after the Effective Date that is intended to result in, and does result in, Purchaser's inability to consummate the transaction contemplated nothing contained in this Agreement for a reason other than Purchaser's default Section 6.3 shall limit or the failure of any condition to Closing to be satisfied. For purposes of this Section 6.2, specific performance shall be considered not available to prevent Purchaser if either from (i) the nature of Seller's default is such that upon obtaining such specific performance Purchaser would receive materially less than Purchaser bargained asserting any legal or equitable claims against Seller for in this AgreementPurchaser’s obligation to pay attorneys’ fees and other amounts under Section 10.19, or (ii) enforcing any indemnity obligation of Seller under this Agreement or preclude Purchaser from obtaining a damage award in connection therewith, or (iii) enforcing Seller’s other obligations and liabilities which survive Closing or a termination of this Agreement, and (b) in the court declines to grant event that any such failure by Seller is of such a nature that specific performance as a remedy is not available as a matter of law, then, Purchaser shall have the right, anything herein contained to the contrary notwithstanding, to damages against Seller on account of such failure to compensate Purchaser for reasons other than all of its third party out of pocket costs and expenses incurred in connection with the merits transaction contemplated hereby and this Agreement, but not in excess of Purchaser's underlying claim the sum of defaultOne Hundred Thousand and No/100 Dollars ($100,000.00) and Purchaser shall have the right to pursue an action for such damages in a court of competent jurisdiction.