representation of any kind, expressed or implied, pertaining to the Property,
the condition thereof (environmental or otherwise), the value thereof or any
other matter pertaining to the Property.
10.
Default and Legal Fees.
(a)
Upon the bringing of any action or suit by
a party hereto against another party hereto by reason of any alleged default
hereunder or to interpret or enforce any terms hereof, the prevailing party
shall be entitled to recover as an element of its costs of suit, and not as
damages, reasonable attorneys' fees and costs, and court costs, whether or not
the suit proceeds to final judgment, settlement or otherwise.
(b)
IN THE EVENT THE CLOSING DOES NOT OCCUR AS
HEREIN PROVIDED BY REASON OF ANY DEFAULT BY BUYER, BUYER AND SELLER AGREE THAT
IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE
7
THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, BUYER AND SELLER HEREBY AGREE
THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER
IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE
PROPERTY IS, AND SHALL BE, AS SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW
OR IN EQUITY), AN AMOUNT EQUAL TO THE DEPOSIT (EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT). SAID AMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES
FOR THE BREACH OF THIS AGREEMENT BY BUYER, ALL OTHER CLAIMS TO DAMAGES OR OTHER
REMEDIES BEING HEREIN EXPRESSLY WAIVED BY SELLER (EXCEPT AS OTHERWISE PROVIDED
IN THIS AGREEMENT). UPON ANY DEFAULT BY BUYER, THIS AGREEMENT MAY BE TERMINATED
BY SELLER, AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, EACH TO THE OTHER, EXCEPT FOR: (i) THE RIGHT OF SELLER TO COLLECT
SUCH LIQUIDATED DAMAGES FROM BUYER AND/OR ESCROW HOLDER; (ii) BUYER'S OBLIGATION
TO RETURN THE DOCUMENTS DESCRIBED IN, AND SUBJECT TO THE TERMS OF, PARAGRAPH 5
ABOVE; (iii) THE RIGHT OF SELLER TO ENFORCE ITS REMEDIES UNDER THE
INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN THIS AGREEMENT; AND (iv) THE
RIGHT OF SELLER TO COLLECT ANY ATTORNEYS' FEES AND COSTS, AND COURT COSTS,
INCURRED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IN ENFORCING THIS
PARAGRAPH 10(b).
(c)
IN THE EVENT THE CLOSING DOES NOT OCCUR AS
HEREIN PROVIDED BY REASON OF ANY DEFAULT BY SELLER, BUYER AND SELLER AGREE THAT
BUYER SHALL BE ENTITLED TO SEEK, AS ITS SOLE AND EXCLUSIVE REMEDY AT ITS
ELECTION EITHER: (I) THE REMEDY OF SPECIFIC PERFORMANCE OF SELLER'S OBLIGATIONS
TO CONVEY THE PROPERTY TO BUYER; OR (II) TERMINATE THIS AGREEMENT IN WHICH EVENT
THE EARNEST MONEY SHALL BE RETURNED TO BUYER. IN NO EVENT SHALL SELLER BE LIABLE
TO BUYER FOR ANY ACTUAL, PUNITIVE, SPECULATIVE OR CONSEQUENTIAL DAMAGES.
/s/ PT
/s/ C.T.
BUYER'S INITIALS
SELLER'S INITIALS
11.
Notices.
All notices or other
communications required or permitted hereunder must be in writing to be
effective, and shall be personally delivered or sent by registered or certified
mail, return receipt requested, or delivered via overnight mail (via Federal
Express or similar overnight courier),