Common use of Purchaser’s Remedies Clause in Contracts

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier if prior to Closing any one or more of the third (3rd) Business Day after written notice thereof from Purchaser Seller's representations or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of warranties are breached in any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)material respect, Purchaser shall elect, as its sole remedy, either to (ai) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Earnest Money, (bii) enforce specific performance to consummate the sale of the Property hereunderenforcx xxxxxfic performance, or (ciii) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days (10) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two (2) months following the scheduled Closing Date. If Closing Purchaser's remedies shall be limited to those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If, however, the equitable remedy of specific performance is consummatednot available, Purchaser shall have all remedies may seek any other right or remedy available at law or in equity equity; provided, however, that in no event shall Seller's liability exceed the event Seller fails lesser of (i) $50,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid (A) to perform any obligation Purchaser's attorneys in connection with the negotiation of Seller performable after this Agreement and (B) to unrelated and unaffiliated third party consultants in connection with the Closing under performance of examinations, inspections and/or investigations pursuant to Article 4. For purposes of this Agreementprovision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction (or an arbitrator, as per Exhibit G) determines conclusively that Purchaser is entitled to specific performance on the merits of its claim but said court or arbitrator is unable to enforce specific performance due to reasons beyond the control of the court or arbitrator. IN NO EVENT SHALL SELLER’S 'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any (after satisfaction of its covenants all conditions precedent set forth in Section 6.1 at or prior to Closing this Agreement for such performance) for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s its obligations hereunder, or if before Closing any one or more of Seller's representations or warranties are breached in any material respect, and such default this failure or breach is not cured by the earlier of the third within ten (3rd10) Business Day Days after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), then Purchaser shall electmay, as its sole and exclusive remedy, either either: (i) receive a reimbursement from Seller of Purchaser’s documented, actual out of pocket costs and expenses incurred by Purchaser in connection with this Agreement up to an aggregate amount of $100,000.00 (athe “Reimbursement Amount”) and terminate this Agreement by giving Seller timely written notice of such its election prior to before or at Closing and recover the Xxxxxxx Money, ; (bii) enforce specific performance of Seller’s obligations under this Agreement, provided that if specific performance is unavailable due to consummate the sale of the Property hereunderSeller transferring, or contracting to transfer, all or any portion of Property in breach of this Agreement, then Purchaser shall be entitled to all actual damages incurred in connection with this Agreement; or (ciii) waive said Seller's failure or breach and proceed to Closing without any reduction in the Purchase Price; providedClosing. If Purchaser enforces specific performance of this Agreement by Seller, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser agrees that Purchaser shall be entitled required to recover from Seller Purchaserpay the entire Purchase Price in Immediately Available Funds (provided that Purchaser may use any amount of the Purchase Price necessary to satisfy the Seller’s Diligence CostsRequired Removal Items at Closing), or (2) specific performance is not available because Seller has conveyed and that Purchaser shall accept Seller’s title to the Property as set forth in the Commitment, subject to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this AgreementPermitted Exceptions. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement proceed under Section 11(b)(i) if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days thirty (30) days following the scheduled Closing Date or, having given such that notice, fails to file a lawsuit asserting such the claim or cause of action in the county in which the Property is located King County, Washington, within two months sixty (60) days following the scheduled Closing Date. If Closing Unless Purchaser in good faith either (1) disputes an allegation of Purchaser's default and promptly files suit for declaratory judgment or (2) alleges a Seller default that continues after the notice and cure period set forth above and timely files suit for specific performance and the action is consummatedpending, Purchaser may not place a lis pendens against all or any portion of the Property, and Purchaser hereby waives and releases any right it may have under applicable law to file any lis pendens except as set forth in this sentence. In no event or circumstance shall have all Purchaser be entitled to any consequential or punitive damages. Purchaser's remedies available at law or shall be limited to those described in equity in the event Seller fails to perform any obligation this Section 11(b). The provisions of Seller performable after this Section 11(b) shall survive the Closing under or any termination of this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal Seller and Purchaser hereby acknowledge and agree to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation provisions of this Agreement and (B) to Section 11: 11 LEGAL02/39345998v7 Seller: /s/ BF Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.: /s/ PN

Purchaser’s Remedies. If If, at the Closing, (i) Seller fails defaults in its obligation to consummate the sale of the Property close pursuant to the terms of this Agreement Agreement, (ii) any of Seller’s representations and warranties set forth in Section 8 are untrue, inaccurate or materially breaches incorrect in any material respect, or (iii) Seller has failed to perform any of its covenants in covenants, undertakings or obligations under Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure 14 of a condition precedent to Seller’s obligations hereunderthis Agreement, and any such default circumstance described in any of clauses (i), (ii) or breach is not cured by the earlier of the third (3rdiii) continues for three (3) Business Day Days after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such Seller, which written notice to Seller within one Business Day after Purchaser first learns of any shall detail such default default, untruth or breach by Sellerfailure, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)as applicable, then in each case Purchaser shall be entitled to elect, as its sole and exclusive remedy, to either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover Seller, in which event Escrow Agent shall return the Xxxxxxx MoneyMoney to Purchaser, Seller shall reimburse Purchaser for Purchaser’s actual and verifiable out of pocket costs and expenses not to exceed Twenty-Five Thousand Dollars ($25,000.00), and this Agreement shall become null and void and neither Purchaser nor Seller shall have any further liabilities or obligations hereunder except for obligations which expressly survive the termination of this Agreement, or (b) enforce specific performance waive the condition and proceed to consummate close the sale of transaction without reduction in the Property hereunderPurchase Price, in which event Seller shall have no liability or obligation to Purchaser with respect to such condition, or (c) waive said failure or breach and proceed to Closing without any reduction Purchaser may xxx Seller for specific performance but in the Purchase Price; provided, however, in the no event (1) such termination is due to Seller’s willful breach or default, shall Purchaser shall be entitled to recover from Seller any claim for damages in any specific performance action, except that the foregoing shall not limit Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property right to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation recover attorneys fees under Section 16.11 of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence CostsAgreement. In Under no event circumstances except for Seller’s fraud shall Seller be liable responsible for any consequential, incidental or punitive or special damages under this Agreementdamages. Notwithstanding anything herein As a condition precedent to the contrary, Purchaser shall be deemed exercising any right it may have to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of bring an action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date orhereunder, having given Purchaser must commence such notice, fails an action within thirty (30) days after Purchaser’s notice of Seller’s default. Purchaser agrees that its failure to timely commence such an action for specific performance within such thirty (30) day period shall be deemed a waiver by it of its right to commence an action for specific performance. Purchaser agrees to not file a lawsuit asserting such claim or cause of action in the county in which lis pendens against the Property unless an action for specific performance is located within two months following timely and properly brought hereunder. Purchaser Indemnitors shall indemnify, defend with legal counsel acceptable to Seller, and hold Seller and the scheduled Closing DateProperty harmless from and against any loss, damage, liability, cost or expense arising out of any lis pendens filed against the Property other than in strict compliance with the foregoing requirements. If Closing is consummated, Purchaser The foregoing shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) not limit Purchaser’s right to recover attorneys in connection with the negotiation fees under Section 16.11 of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails to consummate satisfy any condition to Closing set forth in Sections 8.1.1 or 8.1.2 (provided that with respect to any failure to satisfy the sale condition to Closing set forth in Section 8.1.2, such failure is the result of the Property pursuant to an act or omission reasonably within Seller’s control or a breach of this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder), and such default or breach failure is not cured waived by the earlier Purchaser, or Seller otherwise defaults in its obligation to close under this Agreement, and any such failure or default continues for five (5) business days following Seller’s receipt of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Sellerfrom Purchaser, except no notice or cure period Purchaser’s sole remedy therefor shall apply if Seller fails be to consummate the sale of the Property hereunder), Purchaser shall elect, as its sole remedy, either to (a) bring an action for specific performance of Seller’s obligation under this Agreement to deliver the documents required under Section 9.1 above, provided that any action for specific performance must be initiated no later than sixty (60) days after the date that Closing is otherwise required to occur under this Agreement; or (b) terminate this Agreement by giving Seller timely written notice to Seller (which notice shall indicate that a Seller default is alleged by Purchaser) and receive the entire Deposit and reimbursement from Seller of such election prior to or at Closing and recover the Xxxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, howeverPurchaser’s Costs, in the which event (1) such termination is due to Seller’s willful breach or default, neither Seller nor Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, have any further liability or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of obligation under this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease except as expressly provided for in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrarycontrary in this Agreement, to the full extent permitted by law, Purchaser waives, and Seller shall not be deemed liable to have elected Purchaser for, any claim against Seller for loss of business opportunity, loss of profits, loss of income, economic loss or other special or consequential losses or damages or punitive damages. In the event that Purchaser elects to terminate seek specific performance under this Section 12.2, 37 Seller shall not be obligated to expend any money to change the condition of the Property or the state of title of the Property except as otherwise required by this Agreement. Notwithstanding the foregoing provisions of this Section 12.2, Seller shall not be entitled to any notice from Purchaser nor any cure period with respect to the closing condition set forth in Section 8.1.5 or the required Seller closing delivery set forth in Section 9.1.19, and this Agreement if Purchaser fails shall automatically terminate upon the failure of such condition and/or closing delivery, Escrow Agent shall promptly refund the Deposit to deliver to Purchaser, and neither Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, nor Purchaser shall have all remedies available at law any further liability or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys Agreement except as expressly provided for in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails (a) In the event Purchaser elects to consummate the sale proceed to Closing notwithstanding Purchaser’s actual knowledge of the Property pursuant existence of a breach or default by Seller with respect to any representation, warranty, covenant or agreement of Seller under this Agreement Agreement, or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or the failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contraryCondition, Purchaser shall be deemed to have elected waived each such breach, default and failure and any and all rights and remedies in connection therewith. The term “Purchaser’s actual knowledge” (and words of similar import) shall mean the current actual knowledge, based on reasonable but not unlimited investigation, diligence or inquiry in connection with the matters that are the subject of this Agreement or any Other Purchase and Sale Agreement, of Sxxxxxx Xxxxxxxx, Jxxxxx Xxxxxxx and Rxxxxx Xxxxx. (b) If Seller fails to make the Seller Closing Deliveries at Closing as required by Section 9.2(a) of this Agreement for any reason other than a permitted termination of this Agreement or a Purchaser breach or default, Purchaser may, as Purchaser’s sole and exclusive remedy, either (i) terminate this Agreement and the Other Purchase and Sale Agreements, except the terms which expressly survive Closing, and receive a return of the Exxxxxx Money, or (ii) sxx for specific performance. (c) Subject to Section 11.2 above, Purchaser may bring a cause of action against Seller for (i) the breach or default of any representation, warranty, obligation, covenant or agreement of Seller under this Agreement if Purchaser fails first learns of the breach or default after Closing and, within the Survival Period, notifies Seller in writing setting forth 44 specifically and in reasonable detail the claim being made with respect to deliver to Seller written notice of its intent to file a claim such representation, warranty, obligation, covenant or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation agreement of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERSand reasonable and appropriate backup information, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred breach or default by Purchaser and paid to Seller under any Seller Closing Deliveries, or (Aiii) Purchaser’s attorneys otherwise in connection with the negotiation transactions contemplated by this Agreement which survive Closing (including, without limitation the Seller’s Indemnity Obligations) (collectively, the “Seller Surviving Obligations”) only if the claims in the aggregate with respect to the Asset and all Other Assets exceed One Hundred Thousand Dollars ($100,000) (the “Minimum Amount”), and the aggregate maximum liability of Seller for the Seller Surviving Obligations under this Agreement and under the Other Purchase and Sale Agreements, and with respect to the Asset and the Other Assets, shall in no event exceed Eleven Million Dollars (B$11,000,000) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with (the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement“Maximum Amount”).

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier if prior to Closing any one or more of the third (3rd) Business Day after written notice thereof from Purchaser Seller's representations or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of warranties are breached in any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)material respect, Purchaser shall elect, as its sole remedy, either to (ai) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Earnest Money, (bii) enforce specific performance to consummate the sale of the Property hereunderperformance, or (ciii) waive said failure sxxx xxxlure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days (10) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two (2) months following the scheduled Closing Date. If Closing Purchaser's remedies shall be limited to those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If, however, the equitable remedy of specific performance is consummatednot available, Purchaser shall have all remedies may seek any other right or remedy available at law or in equity equity; provided, however, that in no event shall Seller's liability exceed the event Seller fails lesser of (i) $50,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and incurred directly in connection with the negotiation of this Agreement or the due diligence activities performed by Purchaser or at Purchaser's direction in connection with the performance of examinations, inspections and/or investigations pursuant to perform any obligation Article 4. For purposes of Seller performable after this provision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction (or an arbitrator, as per Exhibit G) determines conclusively that Purchaser is entitled to specific performance on the Closing under this Agreementmerits of its claim but said court or arbitrator is unable to enforce specific performance due to reasons beyond the control of the court or arbitrator. IN NO EVENT SHALL SELLER’S 'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier if prior to Closing any one or more of the third (3rd) Business Day after written notice thereof from Purchaser Seller's representations or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of warranties are breached in any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)material respect, Purchaser shall elect, as its sole remedy, either to (ai) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Earnest Money, (bii) enforce specific performance to consummate the sale of the Property hereunderenforcx xxxxxfic performance, or (ciii) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days twenty (20) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two three (3) months following the scheduled Closing Date. If Closing Purchaser's remedies shall be limited to those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If, however, the equitable remedy of specific performance is consummatednot available, Purchaser shall have all remedies may seek any other right or remedy available at law or in equity equity; provided, however, that in no event shall Seller's liability exceed the event Seller fails Earnest Money, if it is nox xxxxxded to perform any obligation Purchaser), plus the lesser of Seller performable after (i) $75,000.00 or (ii) the Closing under actual reasonable out-of-pocket expenses incurred by Purchaser and paid (A) to Purchaser's attorneys in connection with the negotiation of this AgreementAgreement and (B) to unrelated and unaffiliated third party consultants in connection with the performance of examinations, inspections and/or investigations pursuant to Article 4. For purposes of this provision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction (or an arbitrator, as per Exhibit G) determines conclusively that Purchaser is entitled to specific performance on the merits of its claim but said court or arbitrator is unable to enforce specific performance due to reasons beyond the control of the court or arbitrator. IN NO EVENT SHALL SELLER’S 'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails (a) In the event Purchaser elects to consummate the sale proceed to Closing notwithstanding Purchaser’s actual knowledge of the Property pursuant existence of a breach or default by Sellers with respect to any representation, warranty, covenant or agreement of Sellers under this Agreement Agreement, or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or the failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contraryCondition, Purchaser shall be deemed to have elected waived each such breach, default and failure and any and all rights and remedies in connection therewith. The term “Purchaser’s actual knowledge” (and words of similar import) shall mean the current actual knowledge, based on reasonable but not unlimited investigation, diligence or inquiry in connection with the matters that are the subject of this Agreement or any Other Purchase and Sale Agreement, of Sxxxxxx Xxxxxxxx, Jxxxxx Xxxxxxx and Rxxxxx Xxxxx. (b) If Sellers fail to make the Sellers Closing Deliveries at Closing as required by Section 9.2(a) of this Agreement for any reason other than a permitted termination of this Agreement or a Purchaser breach or default, Purchaser may, as Purchaser’s sole and exclusive remedy, either (i) terminate this Agreement and the Other Purchase and Sale Agreements, except the terms which expressly survive Closing, and receive a return of the Exxxxxx Money, or (ii) sxx for specific performance. (c) Subject to Section 11.2 above, Purchaser may bring a cause of action against Sellers for (i) the breach or default of any representation, warranty, obligation, covenant or agreement of Sellers under this Agreement if Purchaser fails first learns of the breach or default after Closing and, within the Survival Period, notifies the Sellers in writing setting forth specifically and in reasonable detail the claim being made with respect to deliver to Seller written notice such representation, warranty, obligation, covenant or agreement of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date orSellers and reasonable and appropriate backup information, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred breach or default by Purchaser and paid to Sellers under any Seller Closing Deliveries, or (Aiii) Purchaser’s attorneys otherwise in connection with the negotiation transactions contemplated by this Agreement which survive Closing (including, without limitation the Sellers’ Indemnity Obligations) (collectively, the “Sellers Surviving Obligations”) only if the claims in the aggregate with respect to the Asset and all Other Assets exceed One Hundred Thousand Dollars ($100,000) (the “Minimum Amount”), and the aggregate maximum liability of Sellers for the Sellers Surviving Obligations under this Agreement and under the Other Purchase and Sale Agreements, and with respect to the Asset and the Other Assets, shall in no event exceed Eleven Million Dollars (B$11,000,000) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with (the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement“Maximum Amount”).

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier if prior to Closing any one or more of the third (3rd) Business Day after written notice thereof from Purchaser Seller's representations or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of warranties are breached in any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)material respect, Purchaser shall elect, as its sole remedy, either to (ai) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover election, in which event the Xxxxxxx MoneyMoney less the Non-Refundable Amount shall be returned to Purchaser by Escrow Agent and Seller shall reimburse Buyer for its actual out-of-pocket third party costs and expenses incurred in connection with the transaction described in this Agreement, including, without limitation, expenses paid (A) to Purchaser’s attorneys in connection with the negotiation of this Agreement and matters related thereof, (bB) enforce to any prospective lender as an application or commitment fee, rate lock or other non-refundable fee, and (C) to unrelated and unaffiliated third party consultants in connection with the performance of examinations, inspections and/or investigations pursuant to this Agreement up to but not exceeding $3,000,000.00, (ii) bring a suit for specific performance to consummate the sale of the Property hereunder, or (ciii) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days thirty (30) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two three (3) months following the scheduled Closing Date. If Closing is consummated, Purchaser Purchaser's remedies shall have all remedies available at law or be limited to those described in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this AgreementSection 10.2 and Sections 10.3 and 10.4. IN NO EVENT SHALL SELLER’S 'S DIRECT OR INDIRECT PARTNERS, MEMBERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property pursuant to this Agreement or materially breaches any of otherwise defaults on its covenants in Section 6.1 obligations hereunder at or prior to Closing for any reason except failure by Purchaser to perform hereunder hereunder, or failure if prior to Closing any one or more of a condition precedent to Seller’s obligations hereunder's representations or warranties are breached in any material respect, and such default or breach is not cured by the earlier of the third (3rd) Business Day business day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate timely Exhibit M, List of Existing Loan Documents M-31 deliver the sale of the Property hereunderdocuments required under this Agreement to be delivered by Seller at Closing), Purchaser shall elect, as its sole remedyremedy (except as provided in Sections 8.6, 10.3 and 10.4 hereof), either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided. Any breach of a representation or warranty by Seller under this Agreement shall be deemed "material" for the purposes of this Section 10.2 if Purchaser's damages resulting from such breach (or breaches, however, if more than one) are reasonably estimated to exceed $100,000.00 in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreementaggregate. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days sixty (60) days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummatedPurchaser properly terminates this Agreement pursuant to subsection (a) above and such termination arose out of a willful and knowing failure of Seller to deliver the Deed to Purchaser in accordance with this Agreement with the condition of title to the Property as required hereunder (as determined on a non-appealable basis by a court of competent jurisdiction), then Seller shall pay to Purchaser shall have all remedies available at law or an amount equal to one percent (1.0%) of the Purchase Price as liquidated damages and not as penalty, in equity full satisfaction of claims against Seller hereunder. Seller and Purchaser agree that Purchaser's damages resulting from a Seller default as described in the event Seller fails immediately preceding sentence are difficult, if not impossible, to perform determine and such amount is a fair estimate of those damages which has been agreed to in an effort to cause the amount of such damages to be certain. Any suit or claim for specific performance shall not be (i) limited in any obligation manner by the waivers in Section 11.3 nor (ii) subject to the requirement for mandatory arbitration under Section 12.20. This Section shall not limit any right of Seller performable after the Closing termination in favor of Purchaser that is expressly provided for under another section of this Agreement. IN NO EVENT SHALL SELLER’S 'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used hereinWithout limiting the foregoing rights and merely as a courtesy to Seller, the term “Diligence Costs” means an amount equal Purchaser shall endeavor to the lesser deliver prompt written notice to Seller upon Seller gaining actual knowledge (and not any constructive or imputed knowledge) that any of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys Seller's covenants as expressly provided for in connection with the negotiation of this Agreement have been breached by Seller in any material respect (and (B) failure to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers promptly deliver such notice shall not be deemed a waiver or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility limitation of Purchaser’s acquisition of the Property pursuant to this Agreement's rights or remedies hereunder).

Purchaser’s Remedies. If Seller fails (a) (i) all the conditions precedent in Section 7.3 have been satisfied, or if fewer than all of the conditions precedent in Section 7.3 have been satisfied and Sellers have elected (or are required under the terms of Section 7.4) to consummate the sale transactions contemplated herein with respect to fewer than all of the Property pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunderAssets, and such default or breach is not cured by the earlier of the third (3rdii) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of in any such default case, Sellers fail or breach by Seller, except no notice or cure period shall apply if Seller fails refuse to consummate the sale of transactions contemplated by this Agreement in accordance with this Agreement with respect to the Property hereunder)Assets for which such conditions precedent have been satisfied or waived by Purchasers, Purchaser or (b) Sellers otherwise are in default under this Agreement, then Purchasers shall elect, as its sole remedy, either be entitled to (ax) terminate this Agreement by giving Seller timely written notice of such election prior given to Sellers, and/or (y) exercise any other right or remedy Purchasers may have at Closing and recover the Xxxxxxx Money, (b) enforce specific performance to consummate the sale law or in equity by reason of the Property hereunderdefault, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Priceincluding specific performance; provided, however, in the event that Purchasers may only exercise rights and remedies under this clause (1y) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of if Sellers’ default under this Agreement is the result of Sellers’ willful or intentional misconduct; and, provided, further, that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation if Purchasers seek specific enforcement of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages Sellers’ obligations under this Agreement. Notwithstanding anything herein to , Purchasers must purchase all of the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to Assets (A) Purchaser’s attorneys in connection with the negotiation of that are not materially adversely affected by Sellers’ default(s) under this Agreement and (B) with respect to Purchaserwhich all conditions precedent under Section 7.1 have been satisfied or waived by Purchasers under the terms of Section 7.2, and Purchasers shall not have the right otherwise to designate specific Assets that Purchasers do not desire to purchase. In no event shall Sellers or Seller Parent be liable to Purchasers for indirect, incidental, consequential or punitive damages as a result of Sellers’ default hereunder. Except for (I) the rights and remedies set forth in clause (b) of this Section 8.2, as qualified herein, and (II) the rights and remedies expressly provided in Section 8.3 with respect to a Material Breach of a Seller’s attorneys and unrelated and unaffiliated third party consultantsRepresentation or any liability that Sellers may have pursuant to the provisions of Section 9.2, contractorsor any of Sellers’ or Seller Parent’s, suppliers other indemnification obligations in favor of Purchasers, Purchasers will have no other rights or other third parties remedies against Sellers, Sellers’ Affiliates or any Covered Persons in connection with the performance transactions contemplated by this Agreement or any breach or alleged breach of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If In the event Seller fails to consummate the sale of the Property pursuant to this Agreement or otherwise materially breaches defaults in the performance of any of its covenants in Section 6.1 at obligations hereunder, or if prior to Closing for any reason except failure by Purchaser to perform hereunder one or failure more of a condition precedent to Seller’s obligations hereunderrepresentations or warranties are breached in any material respect, and such default or breach is not cured by the earlier of the third (3rd) Business Day business day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate Seller’s obligation to deliver the sale of documents required under Section 7.2 to Escrow Agent on or prior to the Property hereunderClosing Date), Purchaser shall elect, as its sole remedy, either (i) to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing Closing, and recover the Xxxxxxx Money (including the Non-Refundable Xxxxxxx Money), together with any and all Purchaser's Costs (bas defined below) incurred as of the date of such termination up to a maximum of $100,000.00, in which event Purchaser and Seller shall have no further obligations hereunder (except with respect to the Surviving Terms, which shall survive any such termination) and Seller shall be free to offer the Property for sale to third parties, or (ii) to enforce specific performance to consummate the sale of the Property obligations of Seller hereunder, provided that the remedy of specific performance will not be applicable with respect to the cure or (c) waive said failure removal of any Title Objections which, by the terms of this Agreement, Seller is not otherwise obligated to cure or breach and proceed to Closing without any reduction in remove. Provided further, if the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) remedy of specific performance is not available because due to any action or inaction by or on behalf of Seller has conveyed or any agent or affiliate thereof, Seller shall reimburse Purchaser for all of its direct, third-party out-of-pocket costs and expenses actually incurred by Purchaser in connection with this Agreement and the inspection and acquisition of said Property, such amount not to exceed One Hundred Thousand and No/100 Dollars ($100,000.00) plus any actual, non-refundable expenses directly related to Purchaser’s financing of the purchase of the Property and Purchaser shall not be entitled to another partyany entitlement to special, consequential or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreementdamages. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of 1184306 v7 action for specific performance against Seller on or before ten Business Days sixty (60) days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such said claim or cause of action in the county in which the Property is located Gwinnett County, Georgia within two months ninety (90) days following the scheduled Closing Date. If Closing is consummatedPurchaser’s remedies shall be limited to those described in Sections 6.2, 6.3 and 6.4, and Purchaser shall have hereby expressly waives and relinquishes any and all remedies available rights to pursue any other remedy at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreementequity. IN NO EVENT SHALL SELLER’S DIRECT SELLER OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, PARTNER, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF SELLER HAVE ANY LIABILITY LIABILITY, BEYOND ITS INTEREST IN THE PROPERTY, FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence "Purchaser's Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) " shall mean the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (Ai) Purchaser’s 's third-party attorneys in connection with the negotiation of this Agreement and or the proposed purchase and/or financing of the Property, (Bii) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties consultants in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 Section 3, and 4.5 or determining the feasibility of Purchaser’s acquisition (iii) to any potential lender in connection with any proposed financing of the Property pursuant Property; provided, no rate lock fees paid prior to this Agreementfive (5) business days before Closing (as initially scheduled) shall be included.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing Contract for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, or if before Closing any one or more of Seller's representations or warranties are breached in any material respect, and such default this failure or breach is not cured by the earlier of the third within three (3rd3) Business Day Days after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of (other than failure to close for any such reason unrelated to a default or breach by SellerPurchaser, except for which there shall be no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunderperiod), then Purchaser shall electmay, as its sole SOLE and EXCLUSIVE remedy, either to either: (ai) terminate this Agreement Contract by giving Seller timely written notice of such its election prior to before or at Closing and recover the Xxxxxxx Money, Money and Purchaser’s Costs (bdefined below); (ii) enforce specific performance to consummate the sale of the Property hereunder, performance; or (ciii) waive said Seller's failure or breach and proceed to Closing Closing. If Purchaser enforces specific performance of this Contract by Seller, Purchaser agrees that Purchaser shall be required to provide evidence that it has available the entire Sales Price in immediately available funds or commitments from its lenders, and that Purchaser shall accept whatever title to the Property in the form as of the date of the Commitment, subject to all liens, encumbrances and other matters affecting title to the Property (all of which shall be deemed Permitted Exceptions) without any reduction in of the Purchase Sales Price; provided, however, in the event other than: (1A) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from liens and encumbrances intentionally and deliberately placed by Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered on the Property after the Effective Date with date of the Commitment; (B) any liens granted by Seller under a mortgage, deed of trust or financing lien in violation other security instrument securing indebtedness of this Agreement Seller; (C) unpaid taxes and special assessments for any years before the year of Closing; and (D) liens, encumbrances, and other matters that Seller does not cause is requested by Purchaser to be released at Closingcure or remove or bond against and that Seller expressly and unconditionally agrees in writing, in response to that request, to cure or Seller has willfully amendedremove or bond against (the matters described in items (A), modified(B), waived its rights under or terminated any Lease in violation of this Agreement with the intent (C) and (D) are referred to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costsherein as "Non-Permitted Liens"). In no event shall Seller be liable for obligated to cure or remove or bond against any consequentialtitle defects, punitive liens, encumbrances, or special damages under this Agreementother matters affecting title, other than Non-Permitted Liens. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser Purchase and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.Sale Agreement15233092_2 17

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder hereunder, or failure if prior to Closing any one or more of a condition precedent to Seller’s obligations hereunder, and such default representations or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of warranties are breached in any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)material respect, Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing in which event (i) the Exxxxxx Money together with all accrued interest thereon shall be refunded to Purchaser, and recover (ii) Seller shall be liable for and shall promptly pay to Purchaser (after receipt of written demand) the Xxxxxxx Moneyactual out-of-pocket costs and expenses incurred by Purchaser in connection with this Agreement (including reasonable attorneys’ fees and costs, due diligence expenses and non-refundable deposits or other amounts paid to lenders) up to $50,000.00, following which the parties hereto shall have no further rights or obligations hereunder; except for rights and obligations which, by their terms, survive the termination hereof, or (b) enforce specific performance to consummate the sale of the Property hereunderperformance, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days (10) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county counties in which the Property is Properties are located within two (2) months following the scheduled Closing Date. If Closing Purchaser’s remedies shall be limited to those described in this Section 10.2 and Sections 8.6, 10.3 and 10.4 hereof. If, however, the equitable remedy of specific performance is consummatednot available, Purchaser shall have all remedies may seek any other right or remedy available at law or in equity equity; provided, however, that in no event shall Seller’s liability exceed the event Seller fails lesser of (y) $50,000.00 or (z) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid (1) to perform any obligation Purchaser’s attorneys in connection with the negotiation of Seller performable after this Agreement and (2) to unrelated and unaffiliated third party consultants in connection with the Closing under performance of examinations, inspections and/or investigations pursuant to Article 4. For purposes of this Agreementprovision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction determines conclusively that Purchaser is entitled to specific performance on the merits of its claim but said court is unable to enforce specific performance due to reasons beyond the control of the court. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing Contract for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, or if before Closing any one or more of Seller's representations or warranties are breached in any material respect, and such default this failure or breach is not cured by the earlier of the third within three (3rd3) Business Day Days after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of (other than failure to close for any such reason unrelated to a default or breach by SellerPurchaser, except for which there shall be no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunderperiod), then Purchaser shall electmay, as its sole SOLE and EXCLUSIVE remedy, either to either: (ai) terminate this Agreement Contract by giving Seller timely written notice of such its election prior to before or at Closing and recover the Xxxxxxx Money, Money and Purchaser’s Costs (bdefined below); (ii) enforce specific performance to consummate the sale of the Property hereunder, performance; or (ciii) waive said Seller's failure or breach and proceed to Closing Closing. If Purchaser enforces specific performance of this Contract by Seller, Purchaser agrees that Purchaser shall be required to provide evidence that it has available the entire Sales Price in immediately available funds or commitments from its lenders, and that Purchaser shall accept whatever title to the Property in the form as of the date of the Commitment, subject to all liens, encumbrances and other matters affecting title to the Property (all of which shall be deemed Permitted Exceptions) without any reduction in of the Purchase Sales Price; provided, however, in the event other than: (1A) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from liens and encumbrances intentionally and deliberately placed by Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered on the Property after the Effective Date with date of the Commitment; (B) any liens granted by Seller under a mortgage, deed of trust or financing lien in violation other security instrument securing indebtedness of this Agreement Seller; (C) unpaid taxes and special assessments for any years before the year of Closing; and (D) liens, encumbrances, and other matters that Seller does not cause is requested by Purchaser to be released at Closingcure or remove or bond against and that Seller expressly and unconditionally agrees in writing, in response to that request, to cure or Seller has willfully amendedremove or bond against (the matters described in items (A), modified(B), waived its rights under or terminated any Lease in violation of this Agreement with the intent (C) and (D) are referred to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costsherein as "Non-Permitted Liens"). In no event shall Seller be liable for obligated to cure or remove or bond against any consequentialtitle defects, punitive liens, encumbrances, or special damages under this Agreementother matters affecting title, other than Non-Permitted Liens. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement Contract if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten (10) Business Days following the scheduled Closing Date or, having given such that notice, fails to file a lawsuit asserting such the claim or cause of action in the county in which the Property is located Tarrant County, Texas, within two (2) months following the scheduled Closing Date. If Closing Unless Purchaser in good faith either (1) disputes an allegation of Purchaser's default and promptly files suit for declaratory judgment or (2) alleges a Seller default that continues after the notice and cure period set forth above and timely files suit for specific performance and the action is consummatedpending, Purchaser may not place a lis pendens against all or any portion of the Property, and Purchaser hereby waives and releases any right it may have under applicable law to file any lis pendens. For purposes of this Contract, "Purchaser’s Costs" shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of mean (i) $200,000.00 or (ii1) the actual reasonable out-of-pocket expenses incurred by Purchaser and Purchaser, not to exceed the aggregate sum of $75,000.00 paid or payable to (A) to Purchaser’s attorneys (including in-house attorneys) in connection with the negotiation of this Agreement and Contract or the proposed purchase of the Property, (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties consultants in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant or (C) to any potential lender in connection with any proposed financing of the Property, plus, (2) only in the event such Seller’s default or breach is an Intentional Default (as hereinafter defined) any non-refundable "rate lock" or "spread lock" deposits or fees paid not more than five (5) Business Days prior to the scheduled Closing Date in connection with any proposed financing of Purchaser (and with not less than 1 Business Day prior written notice thereof to Seller) not to exceed the aggregate sum of $730,800. For purposes of this AgreementContract, "Intentional Default" means any one or more of the following: (A) fraud by Seller, or (B) Seller’s refusal to Close in accordance with the terms of this Contract, or Purchase and Sale Agreement15233079_2 18 (C) (1) a conveyance of the Property by Seller to another person or entity in violation of the terms of this Contract or (2) an intentional act of Seller that results in a monetary encumbrance or lien against the Property that Seller (x) does not bond or otherwise remove at or prior to Closing, or (y) does not certify in writing to Purchaser that, to Seller’s Knowledge, (i) such lien was filed in bad faith, or (ii) results from work performed at the direction of a tenant or other third party, or (iii) is otherwise invalid or improper. Purchaser's remedies shall be limited to those described in this Section 11(b). The provisions of this Section 11(b) shall survive the Closing or any termination of this Contract. If Closing is consummated, then Purchaser shall have the rights and remedies set forth in this Contract if Seller fails to perform any post-closing obligation of Seller under this Contract.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property pursuant to this Agreement or materially breaches any of otherwise defaults on its covenants in Section 6.1 obligations hereunder at or prior to Closing for any reason except failure by Purchaser to perform hereunder hereunder, or failure if prior to Closing any one or more of a condition precedent to Seller’s obligations hereunderrepresentations or warranties are breached, and such breach could reasonably lead to, create, or result in a Material Adverse Change, and, except for Seller’s failure to timely close on the sale of the Property as set forth herein, such default or breach is not cured by the earlier of the third tenth (3rd10th) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx MoneyExxxxxx Money and the Pursuit Costs, (b) enforce seek specific performance of Seller’s obligation to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided. “Pursuit Costs” means the actual, howeverout-of-pocket fees, costs and expenses, damages, and losses incurred or suffered by Purchaser in connection with this Agreement, the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed Lease and the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien transactions contemplated in violation of this Agreement that Seller does not cause and the Lease up to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation the maximum amount of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this AgreementFifty Thousand Dollars ($50,000.00). Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days (10) days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months sixty (60) days following the scheduled Closing Date. If Closing In all events Purchaser’s remedies shall be limited to those described in this Section 10.1 and Sections 4.5, 8.4, 9.3, 10.3 and 10.4. Notwithstanding the foregoing, if specific performance is consummatedunavailable as a remedy to Purchaser because Seller has transferred the Property (or agreed to transfer the Property) to a third party, Purchaser shall have be entitled to pursue all rights and remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreementequity.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property pursuant to this Agreement or materially breaches any of otherwise defaults on its covenants in Section 6.1 obligations hereunder at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier of the third (3rd) Business Day after Purchase and Sale Agreement – 5000 Xxxxxxxxxxxx Xxxxx written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Exxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder and to execute and deliver the documents required to convey the Property to Purchaser in accordance with this Agreement (it being specifically understood and agreed that the remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder), or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall not be entitled to a remedy of specific performance and shall be deemed to have elected to terminate this Agreement if unless a duly authorized signatory of Purchaser fails is physically present at the offices of the Title Company on the Closing Date with all closing documents as required by Section 7.5, executed on behalf of Purchaser where applicable, in Purchaser’s possession and Purchaser files an arbitration action pursuant to deliver to Seller written notice of its intent to file a claim or assert a cause of action Section 12.19 hereof for specific performance against Seller on or before within ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummatedPurchaser’s remedies shall be limited to those described in this Section 10.2 and Sections 8.5, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement10.3 and 10.4 hereof. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing Contract for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, or if before Closing any one or more of Seller's representations or warranties are breached in any material respect, and such default this failure or breach is not cured by the earlier of the third within three (3rd3) Business Day Days after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of (other than failure to close for any such reason unrelated to a default or breach by SellerPurchaser, except for which there shall be no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunderperiod), then Purchaser shall electmay, as its sole SOLE and EXCLUSIVE remedy, either to either: (ai) terminate this Agreement Contract by giving Seller timely written notice of such its election prior to before or at Closing and recover the Xxxxxxx Money, Money and Purchaser’s Costs (bdefined below); (ii) enforce specific performance to consummate the sale of the Property hereunder, performance; or (ciii) waive said Seller's failure or breach and proceed to Closing Closing. If Purchaser enforces specific performance of this Contract by Seller, Purchaser agrees that Purchaser shall be required to provide evidence that it has available the entire Sales Price in immediately available funds or commitments from its lenders, and that Purchaser shall accept whatever title to the Property in the form as of the date of the Commitment, subject to all liens, encumbrances and other matters affecting title to the Property (all of which shall be deemed Permitted Exceptions) without any reduction in of the Purchase Sales Price; provided, however, in the event other than: (1A) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from liens and encumbrances intentionally and deliberately placed by Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered on the Property after the Effective Date with date of the Commitment; (B) any liens granted by Seller under a mortgage, deed of trust or financing lien in violation other security instrument securing indebtedness of this Agreement Seller; (C) unpaid taxes and special assessments for any years before the year of Closing; and (D) liens, encumbrances, and other matters that Seller does not cause is requested by Purchaser to be released at Closingcure or remove or bond against and that Seller expressly and unconditionally agrees in writing, in response to that request, to cure or Seller has willfully amendedremove or bond against (the matters described in items (A), modified(B), waived its rights under or terminated any Lease in violation of this Agreement with the intent (C) and (D) are referred to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costsherein as "Non-Permitted Liens"). In no event shall Seller be liable for obligated to cure or remove or bond against any consequentialtitle defects, punitive liens, encumbrances, or special damages under this Agreementother matters affecting title, other than Non-Permitted Liens. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser Purchase and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.Sale Agreement15233085_2 16

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property pursuant to this Agreement or materially breaches any of otherwise defaults on its covenants in Section 6.1 obligations hereunder at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one (1) Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Exxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, . If Purchaser elects to terminate this Agreement as provided in the event preceding sentence, Seller shall reimburse Purchaser for an amount equal to the lesser of (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costsactual third-party out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement and the transactions contemplated hereby and Purchaser’s due diligence, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all $60,000. Purchaser’s remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed limited to have elected to terminate those described in this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this AgreementSection 10.2 and Sections 10.3 and 10.4 hereof. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder hereunder, or failure if before Closing any one or more of a condition precedent to Seller’s obligations hereunderrepresentations or warranties are breached in any material respect, and such default this failure or breach is not cured by the earlier of the third within three (3rd3) Business Day Days after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), then Purchaser shall electmay, as its sole SOLE and EXCLUSIVE remedy, either to either: (ai) terminate this Agreement by giving Seller timely written notice of such its election prior to before or at Closing and recover the Xxxxxxx MoneyMoney and Seller shall reimburse Purchaser for its third party, out-of-pocket costs and expenses actually incurred in connection with this Agreement and the transaction contemplated hereby (so long as Purchaser provides reasonable evidence of such cost to Seller), including, without limitation, (bA) costs of inspection, (B) Purchaser’s reasonable attorney’s fees, and (C) all third party reports (including, without limitation, zoning reports, title reports, environmental reports, and property assessment reports), items (A), (B), and (C) not to exceed the aggregate amount of Fifty Thousand Dollars ($50,000.00) plus the New Survey Fees (collectively, “Pursuit Costs”); (ii) enforce specific performance to consummate the sale of the Property hereunder, performance; or (ciii) waive said Seller’s failure or breach and proceed to Closing without any reduction in the Purchase Price; providedClosing. If Purchaser enforces specific performance of this Agreement by Seller, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser agrees that Purchaser shall be entitled required to recover from Seller Purchaser’s Diligence Costspay the entire Sales Price in Immediately Available Funds, or (2) specific performance is not available because and that Purchaser shall accept whatever title Seller has conveyed to the Property, if any, subject to all liens, encumbrances and other matters affecting title to the Property to another party, or (all of which shall be deemed Permitted Exceptions) except for (A) Unpermitted Encumbrances; (B) any liens granted by Seller has voluntarily encumbered the Property after the Effective Date with under a mortgage, deed of trust or financing lien in violation other security instrument securing indebtedness of this Agreement Seller; (C) unpaid taxes and special assessments for any years before the year of Closing during which Seller has had title to the Property; (D) Monetary Liens; and (E) liens, encumbrances, and other matters that Seller does not cause is requested by Purchaser to be released at Closingcure or remove or bond against and that Seller expressly and unconditionally agrees in writing, in response to that request, to cure or Seller has willfully amendedremove or bond against (the matters described in items (A), modified(B), waived its rights under or terminated any Lease (C), (D) and (E) are referred to herein as “Non-Permitted Liens”), with no reduction in violation of this Agreement with the intent to frustrate ClosingSales Price, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for obligated to cure or remove or bond against any consequentialtitle defects, punitive liens, encumbrances, or special damages under this Agreementother matters affecting title, other than Non-Permitted Liens. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten fifteen (15) Business Days following the scheduled Closing Date or, having given such that notice, fails to file a lawsuit asserting such the claim or cause of action in the county in which the Property is located York County, South Carolina, within two months ninety (90) days following the scheduled Closing Date. If Closing is consummated, Unless Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means good faith either (1) disputes an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility allegation of Purchaser’s acquisition default and promptly files suit for declaratory judgment or (2) alleges a Seller default that continues after the notice and cure period set forth above and timely files suit for specific performance and the action is pending, Purchaser may not place a lis pendens against all or any portion of the Property pursuant Property, and Purchaser hereby waives and releases any right it may have under applicable law to file any lis pendens. In no event or circumstance shall Purchaser be entitled to any consequential or punitive damages. Purchaser’s remedies shall be limited to those described in this Section 11(b). The provisions of this Section 11(b) shall survive the Closing or any termination of this Agreement.

Purchaser’s Remedies. If Notwithstanding anything to the contrary contained in this Agreement, if Closing does not occur due to a Seller fails to consummate the sale of the Property pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by default, then Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall electmay, as its Purchaser’s sole remedyand exclusive remedy hereunder and at Purchaser’s option, either to (a) terminate this Agreement by giving Seller timely written notice to Seller, Escrow Agent and Title Insurer given at any time after Seller shall have failed, for a period of five (5) days after written notice from Purchaser, to cure such default and, upon receipt of such election prior to or at Closing and recover notice of termination, Escrow ImanageDB:4161238.11 Agent shall refund the Xxxxxxx MoneyMoney to Purchaser and, if Seller’s default was the result of Seller’s intentional and willful act or failure to act, Seller shall reimburse Purchaser for all of its actual, documented, out-of-pocket costs paid to non-affiliated third parties in connection with this Agreement, up to a maximum aggregate amount of $300,000.00, whereupon neither party shall have any rights or obligations under this Agreement, except for those obligations which expressly survive Closing, or (b) enforce upon notice to Seller not more than thirty (30) days after the originally scheduled Closing Date, and provided an action is filed within thirty (30) days thereafter, Purchaser may seek specific performance of Seller’s obligation to consummate convey the sale of the Property hereunderProperty, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Pricebut not damages; provided, however, solely in the event that Purchaser elects to proceed under this clause (1b) such termination is due to Seller’s willful breach or defaultand, Purchaser shall be entitled to recover from Seller despite Purchaser’s Diligence Costscommercially reasonable efforts related thereto, or (2) specific performance is not available because Seller has conveyed the Property to another partyavailable, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under terminate this Agreement. Notwithstanding anything herein , whereupon (i) Escrow Agent shall refund the Xxxxxxx Money to Purchaser, (ii) if Seller’s default and/or the contraryunavailability of specific performance was the result of Seller’s intentional and willful act or failure to act, Purchaser Seller shall be deemed obligated to have elected pay to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable Purchaser’s actual, documented, out-of-pocket expenses incurred by Purchaser and costs paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other non-affiliated third parties in connection with the performance this Agreement up to a maximum aggregate amount of examinations$300,000.00, inspections and/or investigations pursuant to Sections 4.4 and 4.5 (iii) neither party shall have any rights or determining the feasibility of obligations under this Agreement, except for those obligations which expressly survive Closing. Purchaser’s acquisition failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. Purchaser acknowledges and agrees that the waivers, releases and other provisions contained in this Section 7.1 as well as elsewhere in this Agreement, were a material factor in Seller’s acceptance of the Property pursuant Purchase Price and agreement to the terms of this Agreement, and that Seller is unwilling to sell the Property to Purchaser unless Seller is released and indemnified as expressly set forth herein. The releases by Purchaser set forth in this Agreement include claims of which Purchaser is presently unaware or which Purchaser does not presently suspect to exist which, if known by Purchaser, would materially affect Purchaser’s release of Seller. _____________ (Purchaser’s Initials) Purchaser acknowledges and agrees that Purchaser, together with Purchaser’s counsel, has fully reviewed the disclaimers, waivers, releases, indemnities, etc., set forth in this Agreement, and understands the significance and effect thereof. The terms and conditions of this Section 7.1 will expressly survive the Closing, will not merge with the provisions of any closing documents, and will be incorporated into the Deed.

Purchaser’s Remedies. If Notwithstanding anything to the contrary contained in this Agreement, if Closing does not occur due to a Seller fails to consummate the sale of the Property pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by default, then Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall electmay, as its Purchaser’s sole remedyand exclusive remedy hereunder and at Purchaser’s option, either to (a) terminate this Agreement by giving Seller timely written notice to Seller, Escrow Agent and Title Insurer given at any time after Seller shall have failed, for a period of five (5) days after written notice from Purchaser, to cure such default and, upon receipt of such election prior notice of termination, Escrow Agent shall refund the Earnest Money to Purchaser and, if Seller’s default was the result of Seller’s intentional and willful act or at Closing and recover the Xxxxxxx Moneyfailure to act, Seller shall reimburse Purchaser for all of its actual, documented, out-of-pocket costs paid to non-affiliated third parties in connection with this Agreement, up to a maximum aggregate amount of $300,000.00, whereupon neither party shall have any rights or obligations under this Agreement, except for those obligations which expressly survive Closing, or (b) enforce upon notice to Seller not more than thirty (30) days after the originally scheduled Closing Date, and provided an action is filed within thirty (30) days thereafter, Purchaser may seek specific performance of Seller’s obligation to consummate convey the sale of the Property hereunderProperty, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Pricebut not damages; provided, however, solely in the event that Purchaser elects to proceed under this clause (1b) such termination is due to Seller’s willful breach or defaultand, Purchaser shall be entitled to recover from Seller despite Purchaser’s Diligence Costscommercially reasonable efforts related thereto, or (2) specific performance is not available because Seller has conveyed the Property to another partyavailable, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under terminate this Agreement. Notwithstanding anything herein , whereupon (i) Escrow Agent shall refund the Earnest Money to Purchaser, (ii) if Seller’s default and/or the contraryunavailability of specific performance was the result of Seller’s intentional and willful act or failure to act, Purchaser Seller shall be deemed obligated to have elected pay to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable Purchaser’s actual, documented, out-of-pocket expenses incurred by Purchaser and costs paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other non-affiliated third parties in connection with the performance this Agreement up to a maximum aggregate amount of examinations$300,000.00, inspections and/or investigations pursuant to Sections 4.4 and 4.5 (iii) neither party shall have any rights or determining the feasibility of obligations under this Agreement, except for those obligations which expressly survive Closing. Purchaser’s acquisition failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. Purchaser acknowledges and agrees that the waivers, releases and other provisions contained in this Section 7.1 as well as elsewhere in this Agreement, were a material factor Schedule 9.3.6-112 1379426.v9 ImanageDB:4161238.11 in Seller’s acceptance of the Property pursuant Purchase Price and agreement to the terms of this Agreement, and that Seller is unwilling to sell the Property to Purchaser unless Seller is released and indemnified as expressly set forth herein. The releases by Purchaser set forth in this Agreement include claims of which Purchaser is presently unaware or which Purchaser does not presently suspect to exist which, if known by Purchaser, would materially affect Purchaser’s release of Seller. _____________ (Purchaser’s Initials) Purchaser acknowledges and agrees that Purchaser, together with Purchaser’s counsel, has fully reviewed the disclaimers, waivers, releases, indemnities, etc., set forth in this Agreement, and understands the significance and effect thereof. The terms and conditions of this Section 7.1 will expressly survive the Closing, will not merge with the provisions of any closing documents, and will be incorporated into the Deed.

Purchaser’s Remedies. If Seller fails to consummate the sale is in default of the Property pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing Agreement, for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunderreason, and such which default or breach is not cured by the earlier of the third within two (3rd2) Business Day business days after written notice thereof from Purchaser or to Seller of such breach (except for breach to close on the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns in accordance with the terms and provisions of any such default or breach by Sellerthis Agreement, except for which no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunderbe required or allowed), Purchaser Purchaser’s sole remedy shall elect, as its sole remedy, either be to (ai) terminate this Agreement by giving and receive a return of the Deposit (including the Non-Refundable Deposit), and Seller timely written notice shall pay to Purchaser any and all “Purchaser’s Costs” (defined below) incurred as of the date of such election prior to or at Closing and recover the Xxxxxxx Moneytermination, (bii) enforce xxx for specific performance to consummate the sale performance, provided an action therefor is commenced within ninety (90) days of the Property hereunderalleged default, or (ciii) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, only in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) that specific performance is not available unavailable because Seller has conveyed sold the Property to another party, party or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller otherwise has willfully amendedtaken an action that prevents Purchaser from obtaining specific performance, modifiedxxx for actual, waived its rights under but not consequential or terminated any Lease punitive, damages. Except as expressly provided in violation of this Agreement with the intent to frustrate Closingforegoing sentence, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special Purchaser have a right to seek damages under from Seller. For purposes of this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Purchaser’s Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) shall mean the actual reasonable out-of-pocket verifiable expenses incurred by Purchaser and Purchaser, paid or payable to (1) (A) Purchaser’s attorneys in connection with the 10722467 negotiation of this Agreement and or the proposed purchase of the Property, (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties consultants in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant or (C) to any potential lender in connection with any proposed financing of the Property to the extent not covered in Section (2) hereof, such items (A)-(C) in an amount not to exceed, in the aggregate, $75,000, and (2) so long as Purchaser has provided at least two (2) business days prior written notice to Seller of its intention to complete such “rate lock” or “spread lock”, to any potential lender for any non-refundable “rate lock” or “spread lock” deposits or fees or rate cap purchase costs paid not more than five (5) business days prior to the Closing Date in connection with any proposed financing, not to exceed, in the aggregate, the sum of $650,000.00. Seller’s obligation to pay the Purchaser’s Costs shall survive any termination of this Agreement.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s its obligations hereunder, or if before Closing any one or more of Seller's representations or warranties are breached in any material respect, and such default this failure or breach is not cured by the earlier of the third within three (3rd3) Business Day Days after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), then Purchaser shall electmay, as its sole and exclusive remedy, either to either: (ai) terminate this Agreement by giving Seller timely written notice of such its election prior to before or at Closing and recover the Xxxxxxx Money, ; (bii) enforce specific performance to consummate the sale of the Property hereunder, Seller’s obligations under this Agreement; or (ciii) waive said Seller's failure or breach and proceed to Closing without any reduction in the Purchase Price; providedClosing. If Purchaser enforces specific performance of this Agreement by Seller, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser agrees that Purchaser shall be entitled required to recover from Seller Purchaser’s Diligence Costspay the entire Sales Price in Immediately Available Funds, or (2) specific performance is not available because and that Purchaser shall accept whatever title Seller has conveyed to the Property, if any, subject to all liens, encumbrances and other matters affecting title to the Property to another party, (all of which shall be deemed Permitted Exceptions) except for (A) liens and encumbrances intentionally or deliberately placed by Seller has voluntarily encumbered on the Property after expiration of the Effective Date with Inspection Period; (B) any liens granted by Seller under a mortgage, deed of trust or financing lien in violation other security instrument securing indebtedness of this Agreement Seller; (C) unpaid taxes and special assessments for any years before the year of Closing during which Seller has had title to the Property; and (D) liens, encumbrances, and other matters that Seller does not cause is requested by Purchaser to be released at Closingcure or remove or bond against and that Seller expressly and unconditionally agrees in writing, in response to that request, to cure or Seller has willfully amendedremove or bond against (the matters described in items (A), modified(B), waived its rights under or terminated any Lease (C) and (D) are referred to herein as “Non-Permitted Liens”), with no reduction in violation of this Agreement with the intent to frustrate ClosingSales Price, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for obligated to cure or remove or bond against any consequentialtitle defects, punitive liens, encumbrances, or special damages under this Agreementother matters affecting title, other than Non-Permitted Liens. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten (10) Business Days following the scheduled Closing Date or, having given such that notice, fails to file a lawsuit asserting such the claim or cause of action in the county in which the Property is located King County, Washington, within two months thirty (30) days following the scheduled Closing Date. If Closing Unless Purchaser in good faith either (1) disputes an allegation of Purchaser's default and promptly files suit for declaratory judgment or (2) alleges a Seller default that continues after the notice and cure period set forth above and timely files suit for specific performance and the action is consummatedpending, Purchaser may not place a lis pendens against all or any portion of the Property, and Purchaser hereby waives and releases any right it may have under applicable law to file any lis pendens. In no event or circumstance shall have all Purchaser be entitled to any consequential or punitive damages. Purchaser's remedies available at law or shall be limited to those described in equity in the event Seller fails to perform any obligation this Section 11(b). The provisions of Seller performable after this Section 11(b) shall survive the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser or any termination of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. If Seller fails (a) In the event Purchaser elects to consummate the sale proceed to Closing notwithstanding Purchaser’s actual knowledge of the Property pursuant existence of a breach or default by Seller with respect to any representation, warranty, covenant or agreement of Seller under this Agreement Agreement, or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or the failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder), Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contraryCondition, Purchaser shall be deemed to have elected waived each such breach, default and failure and any and all rights and remedies in connection therewith. The term “Purchaser’s actual knowledge” (and words of similar import) shall mean the current actual knowledge, based on reasonable but not unlimited investigation, diligence or inquiry in connection with the matters that are the subject of this Agreement or any Other Purchase and Sale Agreement, of Sxxxxxx Xxxxxxxx, Jxxxxx Xxxxxxx and Rxxxxx Xxxxx. (b) If Seller fails to make the Seller Closing Deliveries at Closing as required by Section 9.2(a) of this Agreement for any reason other than a permitted termination of this Agreement or a Purchaser breach or default, Purchaser may, as Purchaser’s sole and exclusive remedy, either (i) terminate this Agreement and the Other Purchase and Sale Agreements, except the terms which expressly survive Closing, and receive a return of the Exxxxxx Money, or (ii) sxx for specific performance. (c) Subject to Section 11.2 above, Purchaser may bring a cause of action against Seller for (i) the breach or default of any representation, warranty, obligation, covenant or agreement of Seller under this Agreement if Purchaser fails first learns of the breach or default after Closing and, within the Survival Period, notifies Seller in writing setting forth specifically and in reasonable detail the claim being made with respect to deliver to Seller written notice of its intent to file a claim such representation, warranty, obligation, covenant or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation agreement of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERSand reasonable and appropriate backup information, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred breach or default by Purchaser and paid to Seller under any Seller Closing Deliveries, or (Aiii) Purchaser’s attorneys otherwise in connection with the negotiation transactions contemplated by this Agreement which survive Closing (including, without limitation the Seller’s Indemnity Obligations) (collectively, the “Seller Surviving Obligations”) only if the claims in the aggregate with respect to the Asset and all Other Assets exceed One Hundred Thousand Dollars ($100,000) (the “Minimum Amount”), and the aggregate maximum liability of Seller for the Seller Surviving Obligations under this Agreement and under the Other Purchase and Sale Agreements, and with respect to the Asset and the Other Assets, shall in no event exceed Eleven Million Dollars (B$11,000,000) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with (the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement“Maximum Amount”).

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder or failure of a condition precedent to Seller’s obligations hereunder, and such default or breach is not cured by the earlier if prior to Closing any one or more of the third (3rd) Business Day after written notice thereof from Purchaser Seller's representations or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of warranties are breached in any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)material respect, Purchaser shall elect, as its sole remedy, either to (ai) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, (bii) enforce specific performance to consummate the sale of the Property hereunderperformance, or (ciii) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days (10) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two four (4) months following the scheduled Closing Date. If Closing Purchaser's remedies shall be limited to those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If, however, the equitable remedy of specific Performance is consummatednot available, Purchaser shall have all remedies may seek any other right or remedy available at law or in equity equity; provided, however, that in no event shall Seller's liability exceed the event Seller fails lesser of (i) $100,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid (A) to perform any obligation Purchaser's attorneys in connection with the negotiation of Seller performable after this Agreement and (B) to unrelated and unaffiliated third Party consultants in connection with the Closing under performance of examinations, inspections and/or investigations pursuant to Article 4 (with a reasonable allowance for in-house expenses). For purposes of this Agreementprovision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction determines conclusively that Purchaser is entitled to specific performance on the merits Of its claim but said court is unable to enforce specific performance due to reasons beyond the control of the court. IN NO EVENT SHALL SELLER’S 'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, PROPERTY WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.

Purchaser’s Remedies. Company and each Shareholder agree that the provisions of this Article 7 are reasonable and necessary to protect the legitimate business interests of Purchaser. If Seller fails to consummate the sale of the Property pursuant to this Agreement Company or materially a Shareholder breaches any of its covenants the provisions of Section 7.1 or 7.2, Purchaser may, among other remedies, withhold any Earn-Out Payments that are otherwise owed to Company under this Agreement, up to the amount of Purchaser’s actual monetary damages, unless and until a final determination is made by a court or arbiter of competent jurisdiction that Company and the Shareholders have not breached Section 7.1 or 7.2 in Section 6.1 at a manner causing actual monetary damages; provided, that any such withholding must be made in good faith, and if the Earn-Out Payments are withheld and the claim for breach of this provision is later determined to be invalid or prior the withholding exceeded the actual monetary damages, Purchaser will promptly pay the amount of the withheld Earn Out Payment plus 10% interest from the date the Earn Out Payment was due to Closing for any reason except failure the date paid. Notwithstanding the foregoing, in no event shall withholdings by Purchaser to perform hereunder from the Earn-Out Payment be deemed an acknowledgement by Purchaser, Company or failure the Shareholders that damages or the withholding of a condition precedent to Seller’s obligations hereunderpayment is an adequate remedy for the breach of the provision of this Section 7.1 or 7.2. Company and each Shareholder agrees and acknowledges that damages and such termination of payments would be an inadequate remedy for his or her breach of any of the provisions of Section 7.1 or 7.2, and that his or her breach of any of such default or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from provisions will result in immeasurable and irreparable harm to Purchaser. Therefore, in addition to any other remedy to which Purchaser or Calavo may be entitled by reason of Company’s or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns Shareholder’s breach of any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)provision, Purchaser shall elect, as its sole remedy, either to (a) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, (b) enforce specific performance to consummate the sale of the Property hereunder, or (c) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser Calavo shall be entitled to recover seek and obtain temporary, preliminary, and permanent injunctive relief from Seller Purchaser’s Diligence Costs, any court of competent jurisdiction restraining Company or (2) specific performance is not available because Seller has conveyed the Property to another party, Shareholder from committing or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed continuing any breach of trust any provision of Section 7.1 or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two months following the scheduled Closing Date. If Closing is consummated, Purchaser shall have all remedies available at law or in equity in the event Seller fails to perform any obligation of Seller performable after the Closing under this Agreement. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement7.2.

Purchaser’s Remedies. If Seller fails to consummate the sale of the Property perform its obligations pursuant to this Agreement or materially breaches any of its covenants in Section 6.1 at or prior to Closing for any reason except failure by Purchaser to perform hereunder hereunder, or failure if at or prior to Closing any one or more of a condition precedent to Seller’s obligations hereunder, and such default representations or breach is not cured by the earlier of the third (3rd) Business Day after written notice thereof from Purchaser or the Closing Date (Purchaser hereby agreeing to give such written notice to Seller within one Business Day after Purchaser first learns of warranties are breached in any such default or breach by Seller, except no notice or cure period shall apply if Seller fails to consummate the sale of the Property hereunder)material respect, Purchaser shall elect, as its sole remedy, either to (ai) terminate this Agreement by giving Seller timely written notice of such election prior to or at Closing and recover the Xxxxxxx Money, (bii) enforce specific performance to consummate the sale of the Property hereunderperformance, or (ciii) waive said failure or breach and proceed to Closing without any reduction in the Purchase Price; provided, however, in the event (1) such termination is due to Seller’s willful breach or default, Purchaser shall be entitled to recover from Seller Purchaser’s Diligence Costs, or (2) specific performance is not available because Seller has conveyed the Property to another party, or Seller has voluntarily encumbered the Property after the Effective Date with a mortgage, deed of trust or financing lien in violation of this Agreement that Seller does not cause to be released at Closing, or Seller has willfully amended, modified, waived its rights under or terminated any Lease in violation of this Agreement with the intent to frustrate Closing, then Purchaser may pursue any and all remedies available at law or in equity, including the recovery of its Diligence Costs. In no event shall Seller be liable for any consequential, punitive or special damages under this Agreement. Notwithstanding anything herein to the contrary, Purchaser shall be deemed to have elected to terminate this Agreement if Purchaser fails to deliver to Seller written notice of its intent to file a claim or assert a cause of action for specific performance against Seller on or before ten Business Days (10) business days following the scheduled Closing Date or, having given such notice, fails to file a lawsuit asserting such claim or cause of action in the county in which the Property is located within two (2) months following the scheduled Closing Date. If Closing Purchaser’s remedies shall be limited to those described in this Section 10.2 and Sections 10.3 and 10.4 hereof. If, however, the equitable remedy of specific performance is consummatednot available, Purchaser shall have all remedies may seek any other right or remedy available at law or in equity equity; provided, however, that in no event shall Seller’s liability exceed the event Seller fails lesser of (i) $100,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid (A) to perform any obligation Purchaser’s attorneys in connection with the negotiation of Seller performable after this Agreement and (B) to unrelated and unaffiliated third party consultants in connection with the Closing under performance of examinations, inspections and/or investigations pursuant to Article 4. For purposes of this Agreementprovision, specific performance shall be considered not available to Purchaser only if a court of competent jurisdiction (or an arbitrator, as per Exhibit E) determines conclusively that Purchaser is entitled to specific performance on the merits of its claim but said court or arbitrator is unable to enforce specific performance due to reasons beyond the control of the court or arbitrator. IN NO EVENT SHALL SELLER’S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE. As used herein, the term “Diligence Costs” means an amount equal to the lesser of (i) $200,000.00 or (ii) the actual reasonable out-of-pocket expenses incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with the negotiation of this Agreement and (B) to Purchaser’s attorneys and unrelated and unaffiliated third party consultants, contractors, suppliers or other third parties in connection with the performance of examinations, inspections and/or investigations pursuant to Sections 4.4 and 4.5 or determining the feasibility of Purchaser’s acquisition of the Property pursuant to this Agreement.