FAIL TO CONVEY THE PROPERTY TO
BUYER IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, AND SUCH FAILURE
CONSTITUTES A DEFAULT HEREUNDER, THEN BUYER SHALL HAVE THE RIGHT TO PURSUE THE
REMEDY SET FORTH IN EITHER SECTIONS 13.2.1 OR 13.2.2 BELOW, AS ITS SOLE AND
EXCLUSIVE REMEDY:
13.2.1
SPECIFIC PERFORMANCE.
THE RIGHT TO PURSUE AN ACTION FOR THE SPECIFIC
PERFORMANCE OF THIS AGREEMENT.
AS A CONDITION PRECEDENT TO BUYER'S RIGHT TO
PURSUE AN ACTION FOR SPECIFIC PERFORMANCE, BUYER MUST BE READY, WILLING AND ABLE
TO PERFORM ALL OF BUYER'S COVENANTS AND OBLIGATIONS THAT THIS AGREEMENT
CONTEMPLATES WILL BE PERFORMED OR DELIVERED ON OR BEFORE THE CLOSE OF ESCROW.
13.2.2
ACTUAL DAMAGES.
THE RIGHT TO THE RETURN OF THE DEPOSIT AND ALL
INTEREST ACCRUED THEREON WHILE IN ESCROW AND TO PURSUE AN ACTION OR ACTIONS FOR
ACTUAL DAMAGES AGAINST SELLER RELATIVE TO SUCH DEFAULT.
IN THE EVENT SPECIFIC
PERFORMANCE IS AVAILABLE AS A REMEDY TO BUYER AND BUYER CHOOSES INSTEAD THE
REMEDY SET FORTH IN THIS SECTION 13.2.2, THEN SUCH ACTION OR ACTIONS FOR DAMAGES
(INCLUDING ANY ACTION FOR ANY BREACH OF SELLER'S REPRESENTATIONS, WARRANTIES OR
COVENANTS) SHALL NOT SEEK NOR SHALL THE AGGREGATE OF ANY AWARDS OBTAINED EXCEED
THE AMOUNT OF $250,000.
BUYER FURTHER AGREES THAT UNLESS BUYER SHALL BE ENTITLED TO SPECIFIC PERFORMANCE
UNDER SECTION 13.2.1 ABOVE, IF BUYER SEEKS OR FILES OR RECORDS A LIS PENDENS OR
ANY OTHER MATTER, CLOUD OR NOTICE AFFECTING TITLE OF THE PROPERTY, OR SEEKS OR
CLAIMS A VENDEE'S LIEN UPON THE PROPERTY, THEN, UPON PRESENTATION OF A COPY OF
THIS AGREEMENT TO THE COURT, SELLER SHALL BE ISSUED A DISMISSAL OF THE ACTION EX
PARTE, THAT THE LIS PENDENS OR OTHER NOTICES SHALL BE EXPUNGED UPON SELLER'S EX
PARTE APPLICATION.
NOTHING CONTAINED IN THIS SECTION IS INTENDED TO WAIVE OR OTHERWISE LIMIT
BUYER'S RIGHTS TO OBTAIN FROM SELLER ALL COSTS AND EXPENSES OF ENFORCING ITS
RIGHTS UNDER THIS AGREEMENT, INCLUDING ATTORNEYS' FEES AND COSTS.
/int./ JL
/int./ PN
Seller's Initials
Buyer's Initials
24
14
BROKERS.
Seller and Buyer each hereby represent, warrant to and covenant to each other
that it has not dealt with any third party, other than Cushman & Wakefield
("Brokers") as Seller's representative, in a manner which would obligate the
other to pay any brokerage commission, finder's fee or other compensation due or
payable with respect to the transaction contemplated hereby other than a
commission to be paid to Brokers pursuant to a separate agreement, which shall
be paid by Seller only upon the Closing of the purchase and sale contemplated
hereby.
Buyer represents and warrants to Seller that Buyer has not paid Brokers
any commission or compensation to Brokers in connection with the transaction
contemplated by this Agreement or otherwise in connection with the Property and
that it has not agreed to do so.
Seller hereby indemnifies and agrees to
protect, defend and hold Buyer harmless from and against any and all claims,
losses, damages, costs and expenses (including attorneys' fees, charges and
disbursements) incurred by Buyer