Common use of Seller Default Clause in Contracts

Seller Default. Notwithstanding anything to the contrary contained in this Agreement, if Seller fails to perform in accordance with the terms of this Agreement, then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may either (a) terminate this Agreement, in which event this Agreement shall be null and void, and neither party shall have any further rights or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up to but not in excess of $75,000.00, or (b) upon notice to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek specific performance of this Agreement, but not damages. Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If specific performance is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek and collect damages.

Seller Default. Notwithstanding anything If Seller, prior to the contrary contained Closing, defaults in its covenants, or obligations under this AgreementContract, if Seller fails including to perform in accordance sell the Property as required by this Contract and, other than with respect to Seller's obligation to sell the terms of Property as required by this AgreementContract, such default continues for more than 10 days after written notice from Purchaser, then, at Purchaser's election and as Purchaser’s 's sole and exclusive remedy hereunder and at Purchaser’s optionremedy, Purchaser may either (a) terminate this AgreementContract shall terminate, in which event this Agreement and all payments and things of value, including the Deposit, provided by Purchaser hereunder shall be null and void, and neither party shall have any further rights or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 returned to Purchaser and Seller shall reimburse Purchaser for pay to Purchaser, as its reasonable sole recoverable damages (but without limiting its right to receive a refund of the Deposit), its direct and actual out-of-pocket due diligence expenses and costs and expenses incurred (documented by paid invoices to third parties) in connection with this Agreement up to but transaction, which damages shall not exceed $50,000 in excess of $75,000.00aggregate, or (b) upon notice subject to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafterthe conditions below, Purchaser may seek specific performance of Seller's obligation to deliver the Deed pursuant to this Agreement, Contract (but not damages). Purchaser’s failure to Purchaser may seek specific performance of Seller's obligation to deliver the Deed pursuant to this Contract only if, as aforesaid a condition precedent to initiating such litigation for specific performance, Purchaser first shall constitute its election (i) deliver the total Purchase Price and all Purchaser Closing documents to proceed Escrow Agent in accordance with the requirements of this Contract, including, without limitation, Sections 2.2.3 and 5.3; (ii) not otherwise be in default under clause this Contract; and (iii) file suit therefor with the court on or before the 90th day after the Closing Date; if Purchaser fails to file an action for specific performance within 90 days after the Closing Date, then Purchaser shall be deemed to have elected to terminate the Contract in accordance with subsection (a) above. If specific performance is not available Purchaser agrees that it shall promptly deliver to Purchaser due Seller an assignment of all of Purchaser's right, title and interest in and to an intentional act of (together with possession of) all plans, studies, surveys, reports, and other materials paid for with the out-of-pocket expenses reimbursed by Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title pursuant to the MOB Propertyforegoing sentence. SELLER AND PURCHASER FURTHER AGREE THAT THIS SECTION 10.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, has materially changed since the Effective Date)AND SHALL BE PURCHASER'S EXCLUSIVE REMEDY AGAINST SELLER, or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by SellerBOTH AT LAW AND IN EQUITY ARISING FROM OR RELATED TO A BREACH BY SELLER OF ITS COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER ANY SPECIAL, then in any such caseCONSEQUENTIAL, in addition to terminating this AgreementPUNITIVE, Purchaser may seek and collect damagesSPECULATIVE OR INDIRECT DAMAGES, ALL OF WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLER FOR ANY BREACH BY SELLER, OF ITS COVENANTS OR ITS OBLIGATIONS UNDER THIS CONTRACT. PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR ANY LIEN AGAINST THE PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS CONTRACT AND HAS FILED AN ACTION SEEKING SUCH REMEDY.

Seller Default. Notwithstanding anything to If, at the contrary contained Closing, (i) Seller is in this Agreementdefault of any of its obligations hereunder, if Seller or (ii) any of Seller’s Warranties are, in the aggregate, untrue, inaccurate or incorrect in any material respect, or (iii) the Closing otherwise fails to occur by reason of Seller’s failure or refusal to perform its obligations hereunder in accordance with the terms a prompt and timely manner, and any such circumstance described in any of this Agreementclauses (i), then(ii) or (iii) continues for five (5) days after written notice from Buyer to Seller, which written notice shall detail such default, untruth or failure, as Purchaser’s applicable, then Buyer shall have the right, to elect, as its sole and exclusive remedy hereunder and at Purchaser’s optionremedy, Purchaser may either to (a) terminate this AgreementAgreement by written notice to Seller, in promptly after which event this Agreement any Deposit shall be null and voidreturned to Buyer and, and neither party thereafter, the parties shall have any no further rights or obligations under hereunder except for obligations which expressly survive the termination of this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up to but not in excess of $75,000.00, or (b) upon notice waive the condition and proceed to Seller not more than ten close the Transaction, or (10c) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek specific performance of this AgreementAgreement by Seller. As a condition precedent to Buyer exercising any right it may have to bring an action for specific performance hereunder, but not damagesBuyer must commence such an action within one hundred twenty (120) days after the occurrence of Seller’s default. Purchaser’s Buyer agrees that its failure to seek timely commence such an action for specific performance as aforesaid within such one hundred twenty (120) day period shall constitute its election to proceed under clause (a) above. If specific performance is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise be deemed a waiver by it of its right to commence an action for specific performance, Purchaser shall not receive substantially performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek and collect damages.

Seller Default. Notwithstanding anything to In the contrary contained in this Agreementevent of a Seller Default, if Seller fails to perform in accordance with the terms of this Agreement, then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may either (a) Purchaser shall have the right to waive such Seller Default and proceed to Closing without any reduction in or setoff against the Purchase Price; (b) Purchaser may elect to terminate this Agreement, in which event this Agreement the Xxxxxxx Money shall be null and voiddisbursed pursuant to Section 3.2.4, and neither party upon such disbursement, Seller and Purchaser shall have any no further rights or obligations under this Agreement, except those which expressly survive such termination, or (c) Purchaser may seek specific performance as set forth Purchaser’s sole and exclusive remedy. Notwithstanding the foregoing, in Sections 9.1.1the event such Seller Default is (i) an intentional act of Seller with the express purpose of not consummating the transaction described in this Agreement, 10Purchaser may elect to bring an action against Seller for damages; provided, 12.6 however, that in no event shall the aggregate amount of damages recoverable by Purchaser under this Agreement in such case (exclusive of any amounts recoverable by Purchaser by reason of any Indemnification Loss) exceed the amount of Two Million One Hundred Fifteen Thousand and 12.16 and Seller no/100 Dollars ($2,115,000) or (ii) any other default under this Agreement (whether intentional or not), Purchaser shall reimburse Purchaser for be entitled to its reasonable out-of-pocket due diligence costs legal fees and expenses incurred in connection with this Agreement up to but not such default; provided, however, that in excess of $75,000.00, or (b) upon notice to Seller not more than ten (10) days after Purchaser becomes aware no event shall the aggregate amount of such failure, fees and provided an action is filed within six expenses in such case exceed the amount of Two Hundred Fifty Thousand and no/100 Dollars (6) months thereafter, Purchaser may seek specific performance of this Agreement, but not damages. Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If specific performance is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the MOB Property to another party$250,000), or if, upon the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek and collect damages.

Seller Default. In the event that Seller breaches or shall have failed in any material respect on the Closing Date to have performed any of the covenants and agreements contained in this Agreement which are to be performed by Seller on or before the Closing Date, any representation or warranty of Seller herein was untrue when made, or Seller shall have caused any representation or warranty to become untrue between the date of this Agreement and the Closing, then Buyer shall have the right to take any and all legal actions necessary to compel Seller’s specific performance hereunder (it being acknowledged that damages at law would be an inadequate remedy), and to consummate the transaction contemplated by this Agreement in accordance with the provisions of this Agreement. In the event all of the conditions listed in Section 7.2 have not been satisfied or waived, Buyer may elect to terminate this Agreement and receive the Escrowed Amount and this Agreement shall be null and void without further recourse to either party hereto. Notwithstanding anything to the contrary contained herein, should specific performance be unavailable and rendered meaningless to Buyer due to a willful action of Seller in this Agreement, if Seller fails to perform in accordance with the terms violation of this AgreementAgreement such as the conveyance of the Property to a third party prior to the Closing Date, then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may either (a) terminate this Agreement, in which event this Agreement Buyer shall be null entitled to a reimbursement from Seller of Buyer’s actual and void, and neither party shall have any further rights or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable documented out-of-pocket due diligence third party costs and expenses incurred in connection with this Agreement up transaction, not to but not in excess exceed an amount of One Hundred Fifty Thousand Dollars ($75,000.00150,000), or (b) upon notice to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek specific performance which reimbursement right shall survive the termination of this Agreement, but not damages. Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If specific performance is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek and collect damages.

Seller Default. Notwithstanding anything (a) If there exists a material breach or default by the Sellers in the performance of their obligations under this Agreement of which the Buyer has provided the Sellers written notice of and the Sellers have failed to cure within fifteen (15) Business Days of such notice (but in all events such material breach or default is not cured prior to the contrary contained in this AgreementClosing Date, if earlier), provided that Sellers shall not be entitled to such notice and opportunity to cure for failure to Close on the Closing Date (any such event, a “Seller fails Event of Default”), then this Agreement may be terminated by the Buyer provided that, the Buyer may not terminate this Agreement pursuant to perform this Section 13.2(a) if, on the Closing Date, there exists a Buyer Event of Default; provided further, that the Buyer may not terminate this Agreement pursuant to this Section 13.2(a) for so long as the Sellers are using reasonable and diligent efforts to cure the material breach or default and such material breach or default is capable of being cured by Sellers prior to the Closing Date. In lieu of terminating this Agreement in accordance with the event of a Seller Event of Default, the Buyer may specifically enforce the terms and provisions of this Agreement. If a Seller Event of Default occurs, then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may either (a) then the Buyer shall be deemed to have elected to terminate this Agreement, receive back the Cash Deposit and terminate the Guaranty if the Buyer fails to file suit for specific performance against Seller in a court prescribed by this Agreement, on or before sixty (60) days following the date upon which Closing was to have occurred, in which event this Agreement shall be null and void, and case neither party shall have any further rights or obligations under this Agreement, Agreement except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up to but not in excess of $75,000.00, or (b) upon notice to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek specific performance those obligations which expressly survive the termination of this Agreement, but not damages. Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If specific performance is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek and collect damages.

Seller Default. Notwithstanding anything In the event that Seller breaches or shall have failed in any material respect on the Closing Date to have performed any of the contrary covenants and agreements contained in this AgreementAgreement which are to be performed by Seller on or before the Closing Date (“Seller Default”), if Seller fails then Buyer shall have the right to perform in accordance with the terms of this Agreement, then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may either (a) terminate this Agreement, in which event this Agreement whereupon Escrow Agent shall be null release the Deposit to Buyer and voidSeller shall reimburse Buyer for its out of pocket due diligence expenses not to exceed Twenty Five Thousand Dollars ($25,000) and, and except as expressly set forth herein, neither party shall have any further rights liability or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up obligation to but not in excess of $75,000.00the other hereunder, or (b) upon notice take any and all legal actions necessary to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek compel Seller’s specific performance hereunder and to consummate the transaction contemplated by this Agreement in accordance with the provisions of this Agreement, but not damagesprovided that any such action must be commenced and prosecuted diligently within sixty (60) days following the Closing Date. PurchaserBuyer’s failure to seek specific performance as aforesaid shall constitute its election to proceed under pursue the remedy set forth in clause (ab) abovein the time and manner set forth above shall be deemed a waiver of such remedy. If specific performance is not available In no event shall Seller be liable to Purchaser due to an intentional act Buyer for any consequential or punitive damages based upon any breach of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek and collect damagesincluding, without limitation, breaches of representation or warranty.

Seller Default. Notwithstanding anything If Seller, prior to the contrary contained Closing, defaults in its covenants or obligations under this AgreementContract, if Seller fails including to perform in accordance with sell the terms of Property as required by this AgreementContract and such default continues for more than 10 days after written notice from Purchaser, then, at Purchaser's election and as Purchaser’s 's sole and exclusive remedy hereunder and at Purchaser’s optionremedy, Purchaser may either (a) terminate this AgreementContract shall terminate, in which event this Agreement and all payments and things of value, including the Deposit, provided by Purchaser hereunder shall be null returned to Purchaser and voidPurchaser may recover, as its sole recoverable damages (but without limiting its right to receive a refund of the Deposit), its direct and neither party shall have any further rights or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable actual out-of-pocket due diligence expenses and costs and expenses incurred (documented by paid invoices to third parties) in connection with this Agreement up transaction, which damages shall not exceed $50,000 in aggregate, plus any non-refundable deposits or fees paid to but Lender in connection with the Loan Assumption and Release and any non-refundable deposits or fees paid in connection with the XXXX Approval, which deposits and fees shall not exceed $100,000 in excess of $75,000.00aggregate, or (b) upon notice subject to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafterthe conditions below, Purchaser may seek specific performance of Seller's obligation to deliver the Deed pursuant to this Agreement, Contract (but not damages, but Purchaser, if successful, will be entitled to recover its reasonable actual costs of such action, including actual fees as provided in Section 13.16). Purchaser’s failure to Purchaser may seek specific performance of Seller's obligation to deliver the Deed pursuant to this Contract only if, as aforesaid a condition precedent to initiating such litigation for specific performance, Purchaser first shall constitute its election (i) deliver all Purchaser Closing documents to proceed Escrow Agent in accordance with the requirements of this Contract, including, without limitation, Section 5.3 (with the exception of Section 5.3.1); (ii) not otherwise be in default under clause this Contract; and (iii) file suit therefor with the court on or before the 90th day after the Closing Date; if Purchaser fails to file an action for specific performance within 90 days after the Closing Date, then Purchaser shall be deemed to have elected to terminate the Contract in accordance with subsection (a) above. If specific performance is not available Purchaser agrees that it shall promptly deliver to Purchaser due Seller an assignment of all of Purchaser's right, title and interest in and to an intentional act of (together with possession of) all plans, studies, surveys, reports, and other materials paid for with the out-of-pocket expenses reimbursed by Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title pursuant to the MOB Propertyforegoing sentence. SELLER AND PURCHASER FURTHER AGREE THAT THIS SECTION 10.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, has materially changed since the Effective Date)AND SHALL BE PURCHASER'S EXCLUSIVE REMEDY AGAINST SELLER, or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by SellerBOTH AT LAW AND IN EQUITY ARISING FROM OR RELATED TO A BREACH BY SELLER OF ITS COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER ANY SPECIAL, then in any such caseCONSEQUENTIAL, in addition to terminating this AgreementPUNITIVE, Purchaser may seek and collect damagesSPECULATIVE OR INDIRECT DAMAGES, ALL OF WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLER FOR ANY BREACH BY SELLER, OF ITS COVENANTS OR ITS OBLIGATIONS UNDER THIS CONTRACT. PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR ANY LIEN AGAINST THE PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS CONTRACT AND HAS FILED AND IS DILIGENTLY PURSUING AN ACTION SEEKING SUCH REMEDY.

Seller Default. Notwithstanding anything If Seller shall refuse or fail to convey the contrary contained Property to Purchaser in this Agreement, if Seller fails to perform in accordance with the terms violation of this Agreement, then, as Purchaser’s sole and exclusive remedy Seller's obligations hereunder and at Purchaser’s option, for any reason other than a default by Purchaser may either (a) terminate this Agreement, in which event this Agreement shall be null and void, and neither party shall have any further rights or obligations under this Agreement, except as set forth or shall otherwise be in Sections 9.1.1default in its obligations hereunder, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up to but not in excess of $75,000.00, or (b) upon notice to Seller not more than have cured such default within ten (10) days after Purchaser becomes aware receipt of such failure, and provided an action is filed within six (6) months thereafternotice thereof from Purchaser, Purchaser may shall have as its sole and exclusive remedy hereunder the right to either: (a) terminate this Agreement and have the Deposit and interest accrued thereon returned; or (b) seek specific performance of this Agreement, but not damages. Purchaser’s failure In the event that Purchaser elects to seek specific performance as aforesaid shall constitute its election to proceed under clause (aSection 9.2(b) above, Purchaser hereby agrees that: (i) Purchaser shall bring such action within ninety (90) days after the scheduled Date of Closing, or else such remedy shall be deemed waived; and (ii) in no event shall Seller be obligated to undertake any of the following (A) change the condition of the Property or restore the same after any fire or casualty; (B) expend any money (except as provided in Section 3.4 above) or post a bond to remove or insure over a title defect or encumbrance or to correct any matter shown on a survey of the Property except a title defect created by the act, or omission to act, by Seller from and after the full execution of this Agreement by the parties; (C) secure any permit, approval, or consent with respect to the Property or Seller's conveyance thereof; or (D) expend any money to repair, improve or alter the Property or any portion thereof. If Purchaser shall not institute an action for specific performance is within ninety (90) days after the Date of Closing, time being of the essence, and Purchaser has not available then elected to Purchaser due to an intentional act of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performancewaive such default by Seller, Purchaser shall not receive substantially be deemed to have elected to exercise the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then remedy set forth in any such case, in addition to terminating this Agreement, Purchaser may seek and collect damagesSection 9.2(a) above.

Seller Default. Notwithstanding anything to Nashua-Equity P&S Page 22 of 55 November 6, 2006 In the contrary contained in this Agreementevent that Seller breaches its obligations hereunder, if Seller fails to perform in accordance with the terms of this Agreement, then, Buyer may elect the following as Purchaser’s Buyer's sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may either remedies: (ai) elect to terminate this AgreementAgreement and receive the Deposit, in which event this Agreement shall be null and voidvoid without further recourse to either party hereto (other than with respect to those specific provisions herein which, and neither party shall have any further rights or obligations under this Agreementby their terms, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up to but not in excess of $75,000.00expressly survive termination), or (bii) upon notice take legal actions necessary to Seller not more than ten compel Seller's specific performance hereunder (10it being acknowledged that damages at law would be an inadequate remedy), and to consummate the transaction contemplated by this Agreement in accordance with the provisions of this Agreement. As a condition precedent to Buyer exercising any right it may have to bring an action for specific performance hereunder, Buyer must commence such an action within sixty (60) days after Purchaser becomes aware the occurrence of Seller's default. Buyer agrees that its failure to timely commence such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek for specific performance within such sixty (60) day period shall be deemed a waiver by it of its right to commence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the Property. In no event shall Seller be liable to Buyer for any other remedies, including any claims for any damages (except as expressly provided under item (i) above), including, without limitation, additional compensatory damages, special damages, consequential damages (including, without limitation, damages for lost profits, delay, changes in market conditions, etc.) or punitive damages, based upon any breach or default under this Agreement or any other act, error or omission by Seller (including lost profits) or punitive damages based upon any breach of this Agreement, but not damagesincluding, without limitation, breaches of representation or warranty (the foregoing is not, however, intended to preclude Buyer from recovering, in accordance herewith, its actual damages resulting from any breach of Seller's representations and warranties after Closing). Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If specific performance is not available to Purchaser due to an intentional act Buyer further agrees that recourse for any liability of Seller under this Agreement or any document or instrument delivered simultaneously or in connection with or pursuant to this Agreement shall be limited as set forth herein, and solely to (i.e.i) the Property, Seller if Closing has sold the MOB Property to another party)not occurred, or if, upon (ii) following the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e.Closing, the condition amount of MOB Propertythe Purchase Price allocated and distributed to Seller. In no event shall Buyer seek satisfaction for any obligation from any partners, members, managers, shareholders, officers, directors, employees, agents, legal representatives, successors or the condition assigns of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in nor shall any of the foregoing have any personal liability for any such case, in addition to terminating this Agreement, Purchaser may seek and collect damagesobligations of Seller.

Seller Default. Notwithstanding anything (i) Purchaser to Elect to Either Terminate or Seek Specific ------------------------------------------------------- Performance. If (1) Seller is in material default or material breach of ----------- its obligations under this Agreement after the contrary contained expiration of any applicable notice and cure period(s), (2) Purchaser is not otherwise in this Agreementmaterial default or material breach hereunder, if Seller fails to perform in accordance with and (3) the terms of this AgreementClosing does not occur, then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s 's option, Purchaser may either (ax) terminate this Agreementthe Xxxxxxx Money shall be returned to Purchaser, in which event this Agreement shall be null and void, and neither party shall have any further rights or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up to but not in excess of $75,000.00, or (by) upon notice to Seller not more than ten (10) days after Purchaser becomes aware of such failurethe designated Closing Date, and provided an action is filed within six thirty (630) months days thereafter, Purchaser may seek specific performance of this Agreement, but not damagesdamages (except for any damages permitted under Sections 7.B.(ii), (iii) and (iv) below). Purchaser’s 's failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (ax) above. If In the event that Purchaser files an action to obtain specific performance in accordance with this Section 7.B.(i) with an alternate request for damages in accordance with Sections 7.B.(iii) or 7.B.(iv) below, as applicable, and Purchaser is the prevailing party in such a specific performance action and/or such a damages action after issuance of a final, non-appealable order of a court of competent jurisdiction, Purchaser shall be entitled to recover from Seller the reasonable costs and expenses incurred by Purchaser to file such suit. In the event that Purchaser files such an action and Purchaser is not available to Purchaser due to an intentional act the prevailing party in such a specific performance and/or damages action after issuance of Seller (i.e.a final, non-appealable order of a court of competent jurisdiction, Seller has sold shall be entitled to recover from Purchaser the MOB Property reasonable costs and expenses incurred by Seller to another party), or if, upon defend such suit. It is understood that in the exercise of its right to event that Purchaser obtains specific performance, that Purchaser shall not receive substantially no longer have the benefit of its bargain due right to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek alternate claims for damage under Sections 7.B.(iii) and collect damages7.B.(iv) below.

Seller Default. Notwithstanding anything to In the contrary contained in this Agreementevent that, if (i) on the Closing Date, Seller fails to perform in accordance with proceed to Closing pursuant to the terms provisions of this Agreement, thenor (ii) on or before the Closing Date, Seller is in default of any of its material obligations hereunder or any of Seller’s Representations and Warranties are, in the aggregate, untrue, inaccurate or incorrect in any material respect, and subject to the notice provisions set forth in Section 12(c), and Purchaser is not in default hereunder, then Purchaser shall have the right to elect, as Purchaser’s its sole and exclusive remedy hereunder and at Purchaser’s optionremedy, Purchaser may either to either: (aA) terminate this AgreementAgreement by written notice to Seller, in promptly after which event this Agreement the Deposit shall be null and voidreturned to Purchaser, and neither party and, thereafter, the parties shall have any no further rights or obligations under hereunder except for obligations which expressly survive the termination of this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 or (B) waive the default or breach and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up proceed to but not in excess Closing without any reduction of $75,000.00or credit against the Purchase Price, or (bC) upon notice to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek specific performance of this AgreementAgreement by Seller (if and to the extent available and/or authorized pursuant to Virginia law). Notwithstanding the foregoing, but not damages. Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If in the event that specific performance is not available denied to Purchaser due to an intentional act the acts of Seller (i.e.Seller, and Purchaser terminates this Agreement pursuant to subsection 12(b)(A) above, Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performance, shall promptly reimburse Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if for any costs and expenses incurred by Purchaser has terminated in connection this Agreement and any due diligence performed by Purchaser and any costs incurred by Purchaser in connection with the Land Use Application and the Land Use Approvals, provided that such reimbursement obligation shall be limited to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek Two Hundred Fifty Thousand and collect damagesNo/100 Dollars ($250,000.00).

Seller Default. Notwithstanding anything to the contrary contained in this Agreement, if Seller fails to perform in accordance with the terms of this AgreementAgreement prior to Closing and the Closing does not occur, thenthen Purchaser may, as Purchaser’s its sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may either (a) terminate this Agreement, in which event the Deposit shall be returned to Purchaser and Purchaser shall be reimbursed for third party out-of-pocket expenses incurred by Purchaser in connection with the transaction contemplated by this Agreement up to a maximum of One Hundred Thousand Dollars ($100,000), this Agreement shall be null and void, and neither party shall have any further rights or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with those that expressly survive termination of this Agreement up to but not in excess of $75,000.00Agreement, or (b) upon notice to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six forty-five (645) months thereafterdays after the scheduled Closing Date, Purchaser may seek specific performance of this Agreement, but not damagesany damages (whether actual, direct, indirect, consequential, compensatory, punitive or otherwise). Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If specific performance of Seller’s obligation to convey the Property is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise of its right to specific performance, Purchaser shall would not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, the Property or the condition of title to the MOB Property, Property has materially changed since the Effective Date), or if Purchaser has terminated this Agreement directly due to the fraud or an intentional material misrepresentation by act of Seller), then in any either such case, in addition to terminating this Agreement, Purchaser may seek and collect damagesdamages in an amount not in excess of One Million Dollars ($1,000,000).

Seller Default. Notwithstanding anything to If, at the contrary contained Closing, (i) Seller is in this Agreementdefault of any of its obligations hereunder, if Seller or (ii) any of Seller’s Warranties are, in the aggregate, untrue, inaccurate or incorrect in any material respect, or (iii) the Closing otherwise fails to occur by reason of Seller’s failure or refusal to perform its obligations hereunder in accordance with the terms a prompt and timely manner, and any such circumstance described in any of this Agreementclauses (i), then(ii) or (iii) continues for five (5) days after written notice from Buyer to Seller, which written notice shall detail such default, untruth or failure, as Purchaser’s applicable, then Buyer shall have the right, to elect, as its sole and exclusive remedy hereunder and at Purchaser’s optionremedy, Purchaser may either to (a) terminate this AgreementAgreement by written notice to Seller, in promptly after which event this Agreement any Deposit shall be null and voidreturned to Buyer and, and neither party thereafter, the parties shall have any no further rights or obligations under hereunder except for obligations which expressly survive the termination of this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up to but not in excess of $75,000.00, or (b) upon notice waive the condition and proceed to Seller not more than ten close the Transaction, or (10c) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek specific performance of this AgreementAgreement by Seller. As a condition precedent to Buyer exercising any right it may have to bring an action for specific performance hereunder, but not damagesBuyer must commence such an action within ninety (90) days after the occurrence of Seller’s default. Purchaser’s Buyer agrees that its failure to seek timely commence such an action for specific performance as aforesaid within such ninety (90) day period shall constitute its election to proceed under clause (a) above. If specific performance is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon the exercise be deemed a waiver by it of its right to commence an action for specific performance, Purchaser shall not receive substantially performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portion of the benefit Property. Notwithstanding any other provision of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek and collect damagesfailure to obtain Foreclosure Deed Delivery shall not be a Seller default under this Agreement; such inability to obtain Foreclosure Deed Delivery shall be governed by Section 2.3 of this Agreement.

Seller Default. Notwithstanding anything If Seller shall default in its performance obligations under this Agreement prior to or on the contrary contained Closing Date or the representations and warranties of Seller set forth in this Agreement, if Seller fails to perform Agreement shall not be true and correct in any material respect as and when made in accordance with their respective terms, and, with respect to any default other than a default by Seller to tender performance on the terms of this AgreementClosing Date, then, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, Purchaser may either (a) terminate this Agreement, in which event this Agreement such default shall be null and void, and neither party shall have any further rights or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser continue for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up to but not in excess of $75,000.00, or (b) upon notice to Seller not more than ten (10) days after following written notice thereof given by Purchaser becomes aware of to Seller or, if sooner, the Closing Date, then and in such failureevent Purchaser shall be entitled either (i) to terminate this Agreement upon written notice given to Seller, in which event the Deposit promptly shall be released to Purchaser and neither party shall have further rights or obligations to the other hereunder except as expressly provided an action is filed within six (6) months thereafter, Purchaser may seek specific performance of in this Agreement, but not damages. Purchaser’s failure or (ii) to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If of, but not damages from, Seller; provided, however, that if specific performance is not a remedy available to Purchaser due solely as a result of a prior sale of the Property (or part thereof) by Seller to an intentional act a third party, then, in such event (and provided that Purchaser is not in default under the terms of Seller (i.e., Seller has sold the MOB Property to another partythis Agreement), or if, upon the exercise of its right to specific performance, Purchaser shall not receive substantially also be entitled to pursue an action for compensatory damages against Seller; provided, however, such compensatory damages shall in no event exceed Ten Million and No/100 Dollars ($10,000,000.00). Notwithstanding the benefit of its bargain due to an intentional act of Seller (i.e.foregoing, the condition of MOB Property, or the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to for any reason shall not file an action for specific performance in any court asserting jurisdiction over the fraud or intentional material misrepresentation by SellerProperty and Seller within sixty (60) days from the date scheduled for Closing, then in any such case, in addition Purchaser conclusively shall be deemed to terminating this Agreement, Purchaser may seek and collect damageshave waived its right of specific performance hereunder.

Seller Default. Notwithstanding anything If Seller shall fail to consummate this Contract for any reason, except Seller’s lender’s failure to approve of the contrary contained in this Agreementsale of the Property, if Seller fails to perform in accordance with the terms Buyer's default, or Buyer's termination of this AgreementContract pursuant to a right to terminate given herein, thenor defaults under any material obligation hereunder (which is not cured within five (5) business days after receipt of written notice), Buyer must elect, as Purchaser’s sole and its exclusive remedy hereunder and at Purchaser’s optionremedy, Purchaser may to either (a) terminate this Agreement, in which event this Agreement shall be null and void, and neither party shall have any further rights or obligations under this Agreement, except as set forth in Sections 9.1.1, 10, 12.6 and 12.16 and Seller shall reimburse Purchaser for its reasonable out-of-pocket due diligence costs and expenses incurred in connection with this Agreement up bring suit to but not in excess of $75,000.00, or (b) upon notice to Seller not more than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within six (6) months thereafter, Purchaser may seek enforce specific performance of this AgreementContract, but not damagesprovided such suit is brought within sixty (60) days from the date of such breach, or terminate this Contract. PurchaserIf Buyer elects to terminate the Contract under the terms of the immediately preceding sentence, Buyer shall receive a refund of the Xxxxxxx Money and Independent Consideration. Upon tender of said Xxxxxxx Money and Independent Consideration to Buyer, the rights and obligations of all parties hereto shall terminate and both parties. Notwithstanding the foregoing, Buyer in no way or manner waives any right to bring suit for damages or for any other remedies available at law or in equity to Buyer in the event of a breach of any of the representations and warranties of Seller set forth in Section 17 hereof of which Buyer gains knowledge within one (1) year after the Closing. Notwithstanding anything herein to the contrary, if Seller shall fail to consummate this Contract due to Seller’s lender’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If specific performance is not available to Purchaser due to an intentional act approve of Seller (i.e., Seller has sold the MOB Property to another party), or if, upon sale of the exercise of its right to specific performance, Purchaser shall not receive substantially the benefit of its bargain due to an intentional act of Seller (i.e., the condition of MOB Property, or Xxxxx’s sole remedy shall be to terminate this Contract and receive a refund of the condition of title to the MOB Property, has materially changed since the Effective Date), or if Purchaser has terminated this Agreement due to the fraud or intentional material misrepresentation by Seller, then in any such case, in addition to terminating this Agreement, Purchaser may seek Xxxxxxx Money and collect damagesIndependent Consideration.