AFFILIATED WITH
PURCHASER IS ASSERTING ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD
UNREASONABLY DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND
MARKETABLE TITLE TO THE PROPERTY OR IF PURCHASER HAS BREACHED SECTION 12.13.
IN
ALL OTHER EVENTS SELLER'S REMEDIES SHALL BE LIMITED TO THOSE DESCRIBED IN THIS
SECTION 10.1 AND SECTIONS 4.10, 8.6, 10.3 AND 10.4 HEREOF.
IF CLOSING IS
CONSUMMATED, SELLER SHALL HAVE ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE
EVENT PURCHASER FAILS TO PERFORM ANY OBLIGATION THAT SURVIVES THE CLOSING OF
THIS AGREEMENT.
10.2
PURCHASER'S REMEDIES.
IF SELLER FAILS TO PERFORM ITS OBLIGATIONS
PURSUANT TO THIS AGREEMENT FOR ANY REASON EXCEPT FAILURE BY PURCHASER TO PERFORM
HEREUNDER OR A PERMITTED TERMINATION HEREUNDER, OR IF PRIOR TO CLOSING ANY ONE
OR MORE OF SELLER'S REPRESENTATIONS OR
WARRANTIES ARE BREACHED IN ANY MATERIAL RESPECT, PURCHASER SHALL ELECT, AS ITS
SOLE REMEDY, EITHER TO (I) TERMINATE THIS AGREEMENT BY GIVING SELLER TIMELY
WRITTEN NOTICE OF SUCH ELECTION PRIOR TO OR AT CLOSING AND RECOVER THE EARNEST
MONEY, (II) ENFORCE SPECIFIC PERFORMANCE, OR (III) WAIVE SAID FAILURE OR BREACH
AND PROCEED TO CLOSING.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
PURCHASER SHALL BE DEEMED TO HAVE ELECTED TO TERMINATE THIS AGREEMENT IF
PURCHASER FAILS TO FILE A LAWSUIT ASSERTING SUCH CLAIM OR CAUSE OF ACTION IN THE
COUNTY IN WHICH THE PROPERTY IS LOCATED WITHIN TWO (2) MONTHS FOLLOWING THE
SCHEDULED CLOSING DATE.
PURCHASER'S REMEDIES SHALL BE LIMITED TO THOSE
DESCRIBED IN THIS SECTION 10.2 AND SECTIONS 10.3 AND 10.4 HEREOF.
IF, HOWEVER,
THE EQUITABLE REMEDY OF SPECIFIC PERFORMANCE IS NOT AVAILABLE, PURCHASER MAY
SEEK ANY OTHER RIGHT OR REMEDY AVAILABLE AT LAW OR IN EQUITY.
IF CLOSING IS
CONSUMMATED, PURCHASER SHALL HAVE ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN
THE EVENT SELLER FAILS TO PERFORM ANY OBLIGATION THAT SURVIVES THE CLOSING OF
THIS AGREEMENT.
10.3
ATTORNEYS' FEES.
IN THE EVENT EITHER PARTY HERETO EMPLOYS AN
ATTORNEY IN CONNECTION WITH CLAIMS BY ONE PARTY AGAINST THE OTHER ARISING FROM
AN ALLEGED DEFAULT UNDER THIS AGREEMENT, THE NON-PREVAILING PARTY SHALL PAY THE
PREVAILING PARTY ALL REASONABLE FEES AND EXPENSES, INCLUDING ATTORNEYS' FEES,
INCURRED IN CONNECTION WITH SUCH TRANSACTION.
10.4
OTHER EXPENSES.
IF THIS AGREEMENT IS TERMINATED DUE TO THE DEFAULT
OF A PARTY, THEN THE DEFAULTING PARTY SHALL PAY ANY FEES OR CHARGES DUE TO
ESCROW AGENT FOR HOLDING THE EARNEST MONEY AS WELL AS ANY ESCROW CANCELLATION
FEES OR CHARGES AND ANY FEES OR CHARGES DUE TO THE TITLE COMPANY FOR PREPARATION
AND/OR CANCELLATION OF THE TITLE COMMITMENT.
ARTICLE 11.
DISCLAIMERS, RELEASE AND INDEMNITY
11.1
DISCLAIMERS BY SELLER.
EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT AND ANY DOCUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT
CLOSING, IT IS UNDERSTOOD AND AGREED THAT SELLER HAS NOT AT ANY TIME MADE AND IS
NOT NOW MAKING, AND IT SPECIFICALLY DISCLAIMS, ANY WARRANTIES OR REPRESENTATIONS
OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR