or under
Article II of the Separate PSA and consummate the Transactions (as defined
herein and in the Separate PSA) on the Closing Date, or (b) defaults, in any
material respect, with respect to any of its representations, warranties or
obligations under this Agreement or under the Separate PSA, and such default
continues for more than ten (10) Business Days after written notice from Seller
(each, a "Purchaser Default"), then Seller and Existing Operator shall have the
right, as their sole and exclusive remedy (Seller and Existing Operator hereby
expressly waive any and all other remedies available to them at law, in equity
or otherwise) to (i) terminate this Agreement immediately, in which case
Purchaser shall be deemed to forfeit the Deposit to Seller and Existing Operator
and the Escrow Agent shall deliver the Deposit to Seller and Existing Operator,
or (ii) if Purchaser is willing to proceed with the Closing, waive such default
and any and all other remedies available to them at law, in equity or otherwise
rights available to them and proceed with the Closing of the Transaction. Upon a
termination of this Agreement, neither Purchaser, Seller nor Existing Operator
shall have any further rights, obligations or liabilities hereunder, except as
otherwise expressly provided herein. SELLER, EXISTING OPERATOR AND PURCHASER
AGREE THAT (A) ACTUAL DAMAGES DUE TO PURCHASER'S DEFAULT HEREUNDER WOULD BE
DIFFICULT AND INCONVENIENT TO ASCERTAIN AND THAT SUCH AMOUNT IS NOT A PENALTY
AND IS FAIR AND REASONABLE IN LIGHT OF ALL RELEVANT CIRCUMSTANCES, (B) THE
AMOUNT SPECIFIED AS LIQUIDATED DAMAGES IS NOT DISPROPORTIONATE TO THE
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DAMAGES THAT WOULD BE SUFFERED AND THE COSTS THAT WOULD BE INCURRED BY SELLER
AND/OR EXISTING OPERATOR AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM THE
MARKET, AND (C) PURCHASER DESIRES TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO
THE AMOUNT OF THE DEPOSIT PAID IN THE EVENT PURCHASER FAILS TO COMPLETE CLOSING.
SELLER, EXISTING OPERATOR AND PURCHASER AGREE THAT THIS SECTION 10.1 IS INTENDED
TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE TO SELLER AND EXISTING OPERATOR AND
THE REMEDIES AVAILABLE TO SELLER AND EXISTING OPERATOR, AND SHALL BE SELLER'S
AND EXISTING OPERATOR'S EXCLUSIVE REMEDY PRIOR TO CLOSING AGAINST PURCHASER,
BOTH AT LAW AND IN EQUITY ARISING FROM OR RELATED TO A BREACH BY PURCHASER OF
ITS COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS. UNDER NO
CIRCUMSTANCES SHALL SELLER OR EXISTING OPERATOR SEEK OR BE ENTITLED TO RECOVER
DAMAGES PRIOR TO CLOSING (INCLUDING ANY SPECIAL, CONSEQUENTIAL, PUNITIVE,
SPECULATIVE OR INDIRECT DAMAGES), ALL OF WHICH SELLER AND EXISTING OPERATOR
SPECIFICALLY WAIVE, FROM PURCHASER FOR ANY BREACH BY PURCHASER OF ITS COVENANTS,
PURCHASER'S REPRESENTATIONS OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT.
10.2
Seller Default. Prior to Closing, if Seller and/or Existing Operator or
any of their Affiliates party to the Separate PSA defaults on its obligations
hereunder or under the Separate PSA, as applicable, to deliver to Escrow Agent
the deliveries specified under Section 5.2 hereunder or under Section 5.2 of the
Separate PSA on