NEGATE, SUPERSEDE OR OTHERWISE AFFECT THE OBLIGATIONS OF THE PARTIES UNDER THE
CONFIDENTIALITY AGREEMENT, AND THE PROVISIONS OF THIS ARTICLE XII WILL SURVIVE
THE TERMINATION OF THIS AGREEMENT, AND IN THE EVENT OF A CONFLICT BETWEEN THE
PROVISIONS OF THE CONFIDENTIALITY AGREEMENT AND THIS AGREEMENT, THE PROVISIONS
OF THIS AGREEMENT SHALL GOVERN.
ARTICLE XIII
REMEDIES
SECTION 13.1
DEFAULT BY SELLER.
(A)
IN THE EVENT THE CLOSING AND THE TRANSACTIONS CONTEMPLATED HEREBY
DO NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF SELLER UNDER THIS
AGREEMENT, PURCHASER MAY, AS PURCHASER'S SOLE AND EXCLUSIVE REMEDY, ELECT BY
NOTICE TO SELLER WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE SCHEDULED CLOSING
DATE, EITHER OF THE FOLLOWING:
(I) TO TERMINATE THIS AGREEMENT, IN WHICH EVENT
PURCHASER WILL RECEIVE FROM THE ESCROW AGENT THE EARNEST MONEY DEPOSIT, AND
THEREAFTER SELLER AND PURCHASER WILL HAVE NO FURTHER RIGHTS OR OBLIGATIONS UNDER
THIS AGREEMENT, EXCEPT WITH RESPECT TO THE TERMINATION SURVIVING OBLIGATIONS; OR
(II) SEEK TO ENFORCE SPECIFIC PERFORMANCE OF SELLER'S OBLIGATION TO EXECUTE THE
DOCUMENTS REQUIRED TO CONVEY SELLER'S LLC INTEREST TO PURCHASER, IT BEING
UNDERSTOOD AND AGREED THAT THE REMEDY OF SPECIFIC PERFORMANCE SHALL NOT BE
AVAILABLE TO ENFORCE ANY OTHER OBLIGATION OF SELLER HEREUNDER.
OTHER THAN AS
EXPRESSLY SET FORTH IN SECTION 13.1(B) BELOW, PURCHASER EXPRESSLY WAIVES ITS
RIGHTS TO SEEK DAMAGES IN THE EVENT THAT THE CLOSING DOES NOT OCCUR BY REASON OF
SELLER'S DEFAULT HEREUNDER.
PURCHASER SHALL BE DEEMED TO HAVE ELECTED TO
TERMINATE THIS AGREEMENT AND RECEIVE BACK THE EARNEST MONEY DEPOSIT IF PURCHASER
FAILS TO FILE SUIT FOR SPECIFIC PERFORMANCE AGAINST SELLER IN A COURT HAVING
JURISDICTION IN THE COUNTY AND STATE IN WHICH THE PROPERTY IS LOCATED, ON OR
BEFORE NINETY (90) DAYS FOLLOWING THE SCHEDULED CLOSING DATE.
NOTWITHSTANDING
THE FOREGOING AS TO THE TERMINATION SURVIVING OBLIGATIONS, NOTHING CONTAINED IN
THIS SECTION 13.1 WILL LIMIT PURCHASER'S REMEDIES AT LAW, IN EQUITY OR AS HEREIN
PROVIDED IN PURSUING REMEDIES OF A BREACH BY SELLER OF ANY OF THE TERMINATION
SURVIVING OBLIGATIONS.
PURCHASER SPECIFICALLY WAIVES ITS RIGHTS TO SEEK ANY
PUNITIVE, SPECULATIVE, OR CONSEQUENTIAL DAMAGES.
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(B)
NOTWITHSTANDING SECTION 13.1(A) ABOVE, IF PURCHASER TERMINATES
THIS AGREEMENT BY REASON OF SELLER'S BAD FAITH, WILLFUL DEFAULT UNDER THIS
AGREEMENT, THEN, IN ADDITION TO THE RETURN OF THE EARNEST MONEY DEPOSIT,
PURCHASER SHALL BE ENTITLED TO BE REIMBURSED FOR PURCHASER'S ACTUAL
OUT-OF-POCKET COSTS RELATED TO THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS' AND THIRD PARTY FEES AND REASONABLE EXPENSES AND
REASONABLE DUE DILIGENCE EXPENSES WITH RESPECT TO THE PURCHASE OF THE PROPERTY,
THE NEGOTIATION OF THIS AGREEMENT (AND ANCILLARY AGREEMENTS)
AND OBTAINING THE
TITLE REPORT AND ANY SURVEY OF THE PROPERTY.
SECTION 13.2
DEFAULT BY PURCHASER.
IN THE EVENT THE CLOSING AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN DO NOT OCCUR AS PROVIDED
HEREIN BY REASON OF ANY DEFAULT OF PURCHASER, PURCHASER AND SELLER AGREE IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE DAMAGES WHICH SELLER MAY
SUFFER.
IN SUCH EVENT, ESCROW AGENT SHALL PAY THE EARNEST MONEY DEPOSIT