Common use of Buyer’s Remedies Clause in Contracts

Buyer’s Remedies. If both (a) this Agreement is terminated ---------------- prior to Closing by Buyer pursuant to Section 8.1.2 or 8.1.3 as a result of a ---------------------- breach by Seller in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and (b) Buyer is not in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein, the Deposit and all accrued interest thereon shall be returned to Buyer, and Buyer shall have, in addition to its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from Seller; provided, however, that -------- ------- such damages shall be limited to $1,000,000.00; and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring the System; and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled to ------------- damages for anticipated profits under any circumstances. If Seller defaults in the performance of its obligations under this Agreement, Buyer shall be entitled, in addition to any other remedies that may be available, to request Seller to specifically perform its obligations under this Agreement, if necessary, through injunction, court order or other process, and to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewith.

Buyer’s Remedies. If both Buyer shall have fulfilled all of its obligations under this Agreement in the time and manner specified herein (as such timeframes may be extended in accordance with the terms hereof) and Seller breaches any of its obligations to close or fails to perform its material obligations under this Agreement, (it being agreed that a failure of a condition to Closing that is not caused by a default by Seller shall not be construed as a breach by Seller of its obligations to close or failure to perform its material obligations), then Buyer shall have, as its sole remedy therefor, the right either (a) to waive the breach or default and proceed to Closing in accordance with the provisions of this Agreement is terminated ---------------- prior to Closing by Buyer pursuant to Section 8.1.2 without adjustment of the Purchase Price; or 8.1.3 as a result of a ---------------------- breach by Seller in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and (b) Buyer is not to terminate this Agreement by written notice to Seller, in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein, which event the entire Deposit and all accrued interest thereon shall be returned to Buyer, Buyer and Buyer shall have, in addition to its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from Seller; provided, however, that -------- ------- such damages shall be limited to $1,000,000.00; and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring the System; and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled to ------------- seek damages for anticipated profits under any circumstances. If Seller defaults in the performance of its obligations under this Agreementan amount equal to all third party costs and expenses, Buyer shall be entitledincluding attorneys fees, in addition to any other remedies that may be available, to request Seller to specifically perform its obligations under this Agreement, if necessary, through injunction, court order or other process, and to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewithwith the proposed transaction, including without limitation negotiating this Agreement and due diligence and other activities and expenses undertaken and incurred in connection with this Agreement, or if Seller’s default is intentional or willful, Buyer shall be entitled to recover all damages incurred by Buyer as a result of Seller’s default, provided that all events, Seller’s liability for damages under this clause (b) shall not exceed $600,000; or (c) to bring an action for specific performance of this Agreement and the obligations of Seller hereunder. If Buyer brings an action for specific performance, the prevailing party shall be entitled to recover reasonable attorneys’ fees, as provided in Section 17.11.

Buyer’s Remedies. If both any condition specified in section 3.1 is not satisfied, Buyer shall have the right, in its exclusive discretion, either to waive such condition and proceed with the purchase of the Shares or to terminate this Agreement; provided that the Closing Date may be extended to any date not later than September 30, 2007, at Buyer’s exclusive election, for a reasonable period to allow all of such conditions to be satisfied, subject to Buyer’s further right to terminate this Agreement on the expiration of the period of the extension if all of such conditions shall not then have been satisfied. HKS shall cause GFRHH to refund the Deposit in full (together with all interest or other earnings thereon, if any) to Buyer, if Buyer so elects to terminate this Agreement based on (a) this Agreement is terminated ---------------- prior to Closing by Buyer pursuant to Section 8.1.2 or 8.1.3 as a result discovery of a ---------------------- breach by Seller material liability that is not disclosed in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and the December Balance Sheet, (b) Buyer is not in breach in any material respect of any of its representations and warranties made herein statement or its covenants information supplied by HKS or agreements made herein, the Deposit and all accrued interest thereon shall be returned Company to Buyer, including the consolidated financial statements of the Company for the year ended December 31, 2006, as heretofore delivered to Buyer, being materially incorrect, (c) HKS materially failing or refusing to cooperate (or to cause the Company to cooperate), after written notice and a five-day opportunity to cure, with Buyer’s due diligence process contemplated by section 4.5, (d) any other breach by either Seller of any provision of this Agreement, or (e) failure of any condition to the obligations of Buyer (which Buyer does not waive); provided that, if Buyer so elects to terminate this Agreement and Sellers shall havenot have committed any wrongful act or omission (such as, but not limited to, those referred to in addition to its right to receive clauses (a) through (e) of this sentence), the portion of the Deposit and all accrued interest thereon, the right that is refunded to seek monetary damages from Seller; provided, however, that -------- ------- such damages shall be limited to $1,000,000.00; and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring the System; and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled reduced by the actual out-of-pocket costs incurred by Sellers or the Company in connection with the transactions contemplated by this Agreement, and the remaining portion of the Deposit shall be paid to ------------- damages for anticipated profits under any circumstancesthe Company. If Seller defaults in the performance of its Buyer elects to terminate this Agreement pursuant to this section 3.3.1, neither Buyer nor Sellers shall have any rights or obligations under this Agreement, Buyer shall be entitled, except as provided in addition to any other remedies that may be available, to request Seller to specifically perform its obligations under this Agreement, if necessary, through injunction, court order or other process, section 3.3.1 and to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewithsection 3.3.3.

Buyer’s Remedies. If both If, on the Closing Date, (ai) this Agreement Seller is terminated ---------------- prior to Closing by Buyer pursuant to Section 8.1.2 in default of any of any of its material obligations hereunder, or 8.1.3 as a result (ii) any of a ---------------------- breach by Seller Seller's representations or warranties are untrue in any material respect respect, or (iii) any condition to the obligation of Buyer to close hereunder has not been substantially satisfied, then, unless otherwise expressly provided in this Agreement, Buyer may elect, as its sole remedy, to (x) terminate this Agreement by written notice to Seller, (y) waive such default, breach or condition and proceed to close the transaction contemplated hereby in accordance with the terms of this Agreement, without any reduction of or credit against the Purchase Price, or (z) in the event that such unsatisfied condition is within the reasonable control of Seller or Seller has defaulted in its obligations hereunder or has intentionally caused such representation and warranty to be untrue or such condition to be unsatisfied, seek specific performance of this Agreement. For purposes of this SUBSECTION 17.2, Seller shall not be deemed to be in default of any of its material obligations or in material breach of any of its representations and warranties made herein or its covenants or agreements made herein warranties, and (b) Buyer is not the condition set forth in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein, the Deposit and all accrued interest thereon Section 8.7 shall be returned deemed substantially satisfied unless the loss to Buyer, and Buyer shall havein the aggregate, in addition to its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from Seller; provided, however, that -------- ------- such damages shall be limited to $1,000,000.00; and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring all such breaches, defaults and/or failures of a condition, exceeds Seventy-Five Thousand Dollars ($75,000.00). In the System; and provided furtherevent that this Agreement is so terminated, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that then Buyer shall be immediately entitled to ------------- damages for anticipated profits the Exxxxxx Money, together with all interest accrued thereon, and thereafter neither party to this Agreement shall have any further rights or obligations hereunder, other than any arising under any circumstances. If Seller defaults in provision herein which expressly provides that it survives the performance termination of its obligations under this Agreement, Buyer shall be entitled, in addition to any other remedies that may be available, to request Seller to specifically perform its obligations under this Agreement, if necessary, through injunction, court order or other process, and to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewith.

Buyer’s Remedies. If both In the event of a default by Sellers under this Agreement prior to or at Closing, Buyer shall provide Sellers written notice of such default and Sellers shall have five (5) Business Days to cure such default. In the event Sellers do not cure such default within such five (5) Business Days, Buyer may, at Buyer's option, subject to the notification and extension options set forth in SECTION 6.1.11, in its absolute and sole discretion, do any one of the following: (i) terminate this Agreement by written notice delivered to Sellers at any time on or before the Closing in which event Buyer may seek actual damages against Sellers in an amount equal to all third party costs incurred by Buyer (and not previously paid by Sellers) plus the actual costs and expenses, including travel expenses, incurred by Hospital Affiliates Development Corporation ("HADC") (not to exceed Five Thousand Dollars ($5,000) plus actual travel expenses), Buyer's affiliate or third parties, to perform the due diligence set forth in the Inspection Period (not including legal or accounting services) not to exceed Thirty Thousand Dollars ($30,000) dollars in the aggregate (which amount is in addition to the return of the Deposit); or (ii) enforce specific performance of this Agreement against Sellers (including reasonable attorneys' fees and court costs incurred by Buyer in such specific performance action). In the event Buyer elects to terminate this Agreement in accordance with this Section, this Agreement shall terminate and the parties shall have no further obligations to or recourse against each other, except set forth herein and the provisions of SECTION 3.8.2 shall apply. In the event a failure of the conditions of SECTION 6.1, is not within the control of Sellers, Buyer's remedy shall be: (a) this Agreement is terminated ---------------- prior to Closing by Buyer pursuant to Section 8.1.2 or 8.1.3 as a result of a ---------------------- breach by Seller in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and (b) Buyer is not in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made hereinterminate the Agreement, the Deposit and all accrued interest thereon shall be returned to Buyer, Buyer and Buyer this termination shall have, in addition to its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from Seller; provided, however, that -------- ------- such damages shall be limited to $1,000,000.00; and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring the System; and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled to ------------- damages for anticipated profits under any circumstances. If Seller defaults in the performance of its obligations under this Agreement, Buyer shall be entitled, in addition to any other remedies that may be available, to request Seller to specifically perform its obligations under this Agreement, if necessary, through injunction, court order or other process, and to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewith.be

Buyer’s Remedies. If both (a) Notwithstanding anything herein provided to the contrary, if this Agreement is not terminated ---------------- prior to Closing by Buyer Seller pursuant to Section 8.1.2 16.1(a) and Seller fails to satisfy on or 8.1.3 prior to the Closing Date the conditions to Closing or the Closing obligations, as the case may be, set forth in Sections 11.2(a), 11.2(b), 11.2(c), 11.2(e) or 12.2, Buyer, at its sole option, may (i) enforce specific performance of this Agreement, or (ii) terminate this Agreement and, if Seller, in an attempt to avoid Closing, has willfully and wrongfully failed to satisfy the Closing conditions or Closing obligations referenced at the beginning of this sentence which are in Seller's control, recover from Seller any and all actual damages, costs and expenses sustained or incurred by Buyer as a result of a ---------------------- breach by Seller's failure to Close and to perform Seller's obligations under Section 12.2 and other provisions of this Agreement, or (iii) terminate this Agreement and recover from Seller in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and (b) Buyer is not in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein, the Deposit and all accrued interest thereon shall be returned actual damages, costs and expenses sustained or incurred by Buyer as a result of Seller's failure to Buyer, Close and Buyer shall have, in addition to its right to receive the Deposit perform Seller's obligations under Section 12.2 and all accrued interest thereon, the right to seek monetary damages from Sellerother provisions of this Agreement; provided, however, that -------- ------- such damages the aggregate amount of damages, costs and expenses recoverable by Buyer under this clause (iii) shall be limited not exceed the sum of (x) the attorneys' fees, accounts' fees, consultants' fees and other transactional expenses with respect to $1,000,000.00; and provided further, that in no ---------------- event shall the transaction evidenced by this Agreement incurred by Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result through the date of Buyer's not acquiring the System; and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled to ------------- damages for anticipated profits under any circumstances. If Seller defaults in the performance termination of its obligations under this Agreement, (y) the actual damages, if any, which Buyer shall be entitledwould have been able to recover against Seller if Buyer had closed its purchase of the Company Shares as contemplated by this Agreement and had brought a breach of contract action against Seller for breach of those representations, in addition warranties, covenants and agreements of Seller, the breach or nonperformance of which by Seller gave rise to any other remedies that may be available, Buyer's right to request Seller to specifically perform its obligations under terminate this Agreement, if necessary, through injunction, court order or other process, and to recover from Seller (z) any attorneys' fees and costs or expenses reasonably incurred recoverable by Buyer in connection therewithunder Section 17.12. Such remedies shall be Buyer's sole and exclusive remedies for such failure, all other remedies being expressly waived by Buyer.

Buyer’s Remedies. If both (a) this Agreement is terminated ---------------- prior Closing does not occur due to Closing by Buyer pursuant to Section 8.1.2 or 8.1.3 a Seller's Default, then Buyer, as its sale and exclusive right and remedy as a result of a ---------------------- breach by such Seller Default, may elect to either (i) cancel this Agreement, in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and (b) Buyer is not in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein, which event the Deposit and all accrued interest thereon shall be returned to Buyer, and Buyer shall have, in addition to its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from Seller; provided, however, that -------- ------- such damages Seller shall be limited liable to $1,000,000.00; Buyer for any title and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller forsurvey costs theretofore incurred by Buyer, any anticipated profits it lost as a result outstanding Loan Assumption Casts and for any of Buyer's reasonable out-of-pocket expenses, not acquiring to exceed $50,000 in the System; and provided furtheraggregate, that nothing in this ---------------- Section 8.2.2 thereupon, no party shall be an admission by Seller have any further right or obligation hereunder (except that Buyer shall be entitled to ------------- damages for anticipated profits under any circumstances. If Seller defaults in the performance of remain liable on its obligations under Section 4.2 and 15.8), or (ii) Buyer may enforce specific performance of this AgreementAgreement without any reduction or abatement of the Purchaser Price. 1N NO EVENT SHALL SELLER'S DIRECT OR INDIRECT PARTNERS, Buyer shall be entitledSHAREHOLDERS, in addition to any other remedies that may be availableOWNERS OR AFFILIATES, to request Seller to specifically perform its obligations under this AgreementANY OFFICER, if necessaryDIRECTOR, through injunctionEMPLOYEE OR AGENT OF THE FOREGOING, court order or other processOR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM, and to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewithCAUSE 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.

Buyer’s Remedies. If both Notwithstanding anything herein provided to the contrary, upon failure of the Seller to satisfy the conditions to Closing or the Closing obligations, as the case may be, set forth in (i) item (1) of clause (a) this Agreement is terminated ---------------- prior to Closing by Buyer pursuant to of Section 8.1.2 or 8.1.3 as a result 9.2 on account of a ---------------------- breach by Seller in any material respect breaches of any of its the representations and warranties made herein or its covenants or agreements made herein by Seller on and as of the date of this Agreement, (ii) item (2) of clause (a) of Section 9.2, (iii) clause (b) Buyer is not in breach in any material respect of any Section 9.2 on account of its breaches of the representations and warranties made herein by Seller on and as of the date of this Agreement or its covenants the failure by Seller to satisfy the condition set forth in item (2) of clause (a) of Section 9.2, (iv) clause (e) of Section 9.2, or agreements made herein(v) clauses (a), (d) or (e) of Section 10.2 on or prior to the Deposit and all accrued interest thereon shall be returned to Closing Date, Buyer, at its sole option, may (i) enforce specific performance of this Agreement or (ii) terminate this Agreement and Buyer shall havereceive back the Deposit, in addition to its right to receive the Deposit together with all interest and all accrued interest other amounts earned thereon, the right to seek monetary damages from Selleras Buyer's sole and exclusive remedies for such failure, all other remedies being expressly waived by Buyer; provided, however, that -------- ------- if Seller fails to satisfy the conditions to Closing set forth in item (2) of clause (a) of Section 9.2, such damages shall be limited failure results from Seller's breach of its agreement set forth in Section 8.11, and Buyer elects pursuant to $1,000,000.00; this Section 14.2(b) to terminate this Agreement and provided furtherreceive back the Deposit, that together with all interest and other amounts earned thereon, then, in no ---------------- event shall Buyer be entitled addition to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring receiving back the System; Deposit and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that such interest and other amounts Buyer shall be entitled to ------------- be paid $15,000,000 by Seller as liquidated damages for anticipated profits under any circumstanceswithin 5 business days of such termination. If Seller defaults in and Buyer agree upon such amount as liquidated damages due to the performance difficulty and inconvenience of its obligations under this Agreement, Buyer shall be entitled, in addition to any other remedies that may be available, to request Seller to specifically perform its obligations under this Agreement, if necessary, through injunction, court order or other processmeasuring actual damages and the uncertainty thereof, and to recover from Seller any costs or expenses reasonably incurred by and Buyer in connection therewith.agree

Buyer’s Remedies. If both (a) Seller breaches any of the terms or provisions of this Agreement is terminated ---------------- prior or otherwise defaults hereunder, Buyer may either (i) terminate this Agreement and the Escrow by written notice to Closing by Buyer pursuant to Section 8.1.2 or 8.1.3 as a result of a ---------------------- breach by Seller in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and Escrow Agent, whereupon the Earnest Money (b) Buyer is not in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein, the Deposit and all accrued interest thereon eaxxxx thereon) shall be immediately returned to Buyer, this Agreement and the Escrow shall terminate and thereafter neither party shall have any further obligation or liability to the other hereunder; (ii) waive such default and consummate the transaction contemplated hereby in accordance with the terms or provisions hereof; or (iii) institute all proceedings necessary to specifically enforce the terms or provisions of this Agreement and cause title to the Property to be conveyed to Buyer; Buyer shall have, in addition to hereby specifically waiving its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from of any kind for any default of Seller; provided, provided however, that -------- ------- if Seller by its intentional acts (such damages shall be limited as sale of the Property) has rendered specific performance impossible to $1,000,000.00; and provided furtherenforce, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring the System; and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled have the right to ------------- an action for damages for anticipated profits under against Seller. Notwithstanding any circumstances. If Seller defaults in the performance other terms or conditions of its obligations under this Agreement, Seller shall not be deemed to be in default hereunder unless the breach or default complained of by Buyer shall be entitled, in addition has not been cured within thirty (30) days after written notice thereof has been given to any other remedies that may be available, to request Seller to specifically perform its obligations under this AgreementSeller; however, if necessarythe breach or default cannot be reasonably cured within thirty (30) days, through injunction, court order or other process, then Seller shall have a reasonable period of time to effectuate such cure so long as Seller has commenced such cure with such thirty (30) day period and Seller thereafter diligently pursues such cure to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewithcompletion.

Buyer’s Remedies. If both (a) this Agreement is terminated ---------------- prior to Closing by Buyer pursuant to Section 8.1.2 or 8.1.3 as a result of a ---------------------- breach by In the event that Seller in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein and (b) Buyer is not in breach in any material respect of any of its representations and warranties made herein or its covenants or agreements made herein, the Deposit and all accrued interest thereon shall be returned to Buyer, and Buyer shall have, in addition to its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from Seller; provided, however, that -------- ------- such damages shall be limited to $1,000,000.00; and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller for, nor be entitled to damages from Seller for, any anticipated profits it lost as a result of Buyer's not acquiring the System; and provided further, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled to ------------- damages for anticipated profits under any circumstances. If Seller defaults default in the performance of its Seller's obligations under this AgreementAgreement and the Closing does not occur as a result thereof, Buyer shall be entitled, in addition to any other remedies that may be availableat Buyer's election, to request either (x) receive a return from Seller of the Deposit, together with interest earned thereon (or to specifically perform its obligations under this Agreementhave Seller cause the Escrow Holder to make such a return), if necessaryplus Buyer's costs and expenses (excluding legal fees) incurred and actually paid for examining title to the Property ("Purchaser's Title Costs (the foregoing, through injunctioncollectively, court order a "Deposit Return"), or other process(y) pursue any and all remedies available to a purchaser of real property, including for specific performance. WITHOUT LIMITATION ON THE FOREGOING, BUYER SHALL HAVE NO RIGHT TO, AND BUYER HEREBY WAIVES, ANY AND ALL CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, AND ANY OTHER DAMAGES WHICH WOULD BE PREDICATED IN WHOLE OR IN PART UPON LOSS OF BARGAIN, OPPORTUNITY COSTS, OR ANY LOSS OF ANTICIPATED BENEFITS INCURRED BY BUYER WITH RESPECT TO THIS AGREEMENT AND/OR ANY DEFAULT BY SELLER UNDER THIS AGREEMENT. Upon Buyer's election to receive a Deposit Return, and its actual receipt thereof, this Agreement shall then terminate and be of no further force and effect, and Seller shall have no further obligation or liability to recover from Seller any costs or expenses reasonably incurred by Buyer in connection therewithBuyer, except where survival is expressly provided.

Buyer’s Remedies. If both In the event of a default by Seller under this Agreement, which continues for a period of five (a5) Business Days after Seller's receipt of written notice thereof, Buyer may, at its option, as its sole and exclusive remedy, (i) terminate this Agreement is terminated ---------------- prior to Closing by in which case neither Seller nor Buyer shall have any further rights or obligations hereunder (except that Buyer shall remain obligated pursuant to Section 8.1.2 the provisions hereof which survive termination) and the Deposit shall be immediately returned to Buyer; and, if all of the conditions to Seller’s obligations to close have been satisfied or 8.1.3 waived as a result of a ---------------------- breach by Seller in any material respect of any of its representations permitted herein, and warranties made herein or its covenants or agreements made herein and (b) provided that Buyer is not in breach default hereunder, Buyer shall be entitled to reimbursement from Seller for all of Buyer’s out-of-pocket third party costs and expenses incurred in any material respect connection with this Agreement and Due Diligence Review, subject to a cap of any Thirty-Five Thousand Dollars ($35,000.00), or (ii) specifically enforce the terms and conditions of its representations and warranties made herein or its covenants or agreements made hereinthis Agreement; provided that such specific performance remedy shall be available to Buyer only upon (i) Buyer's full satisfaction of each of Buyer's obligations under this Agreement, including Buyer's obligation to deliver the Deposit to the Title Company and all accrued interest thereon delivering sufficient proof to the Title Company and Seller that Buyer is ready, willing and able to close this transaction, and (ii) Buyer commences its action of specific performance against Seller within thirty (30) days after the Closing Date. The option selected by Buyer from the preceding remedies shall be returned to Buyer's sole and exclusive remedy, and Buyer shall have, in addition to its right to receive the Deposit and all accrued interest thereon, the right to seek monetary damages from Seller; provided, however, that -------- ------- such damages shall be limited to $1,000,000.00; and provided further, that in no ---------------- event shall Buyer be entitled to make any claim against Seller fordamages, nor be entitled to damages from Seller forincluding punitive damages, any anticipated profits it lost as a result of Buyer's not acquiring the System; and provided furtherconsequential damages, that nothing in this ---------------- Section 8.2.2 shall be an admission by Seller that Buyer shall be entitled to ------------- damages for anticipated profits under any circumstances. If Seller defaults in the performance of its obligations under this Agreement, Buyer shall be entitled, in addition to any other remedies that may be available, to request Seller to specifically perform its obligations under this Agreement, if necessary, through injunction, court order or other processincidental damages, and to recover from Seller any costs and all other manner of damages, whether founded in law or expenses reasonably incurred by Buyer in connection therewithequity.