or real estate commission is or shall be due or owing to any party other
than Broker in connection with this transaction based on any action or contact
by such party, and Seller and Purchaser hereby agree to indemnify, defend and
hold harmless the other from any and all loss, liability, claim, cause of
action, damage, cost or other expense of any nature whatsoever, including,
without limitation, attorneys' fees and expenses (but only to the extent
reasonable), resulting from a breach of such representation and warranty. The
provisions of this Section 9 shall survive (i) the Closing and shall not be
deemed merged into any instrument of conveyance delivered at the Closing or
(ii) earlier termination of this Agreement.
10. Termination And Default.
10.1 Termination by Purchaser. If this Agreement is terminated by Purchaser
pursuant to its rights to terminate as expressly provided elsewhere in this
Agreement or if a condition to Purchaser's obligation to close in accordance
with the terms of this Agreement is not satisfied or waived, then the Deposit
shall, in accordance with the procedures set forth in Section 13, promptly be
returned to Purchaser by Escrow Agent and, except as provided for in
Section 10.3 or elsewhere in this Agreement, Purchaser and Seller shall have no
further obligations or liabilities hereunder.
10.2 PURCHASER'S DEFAULT; LIQUIDATED DAMAGES - DEPOSIT. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IF THE CLOSING AND THE TRANSACTION
CONTEMPLATED HEREBY ARE NOT CONSUMMATED AS RESULT OF PURCHASER'S DEFAULT
HEREUNDER, WHICH DEFAULT IS NOT CURED WITHIN TEN (10) BUSINESS DAYS AFTER NOTICE
FROM SELLER IN THE CASE OF A MONETARY DEFAULT (PROVIDED THE FOREGOING NOTICE AND
CURE PERIOD SHALL NOT APPLY TO PURCHASER'S FAILURE TO MAKE THE DEPOSIT AS AND
WHEN REQUIRED PURSUANT TO SECTION 2(a)(i)) OR PRIOR TO CLOSING IN THE CASE OF
ANY NON-MONETARY DEFAULT (PROVIDED THAT IN NO EVENT SHALL THE FOREGOING OF THIS
SECTION 10.2 BE DEEMED TO OPERATE AS AN EXTENSION OF THE CLOSING DATE AND ANY
CURE PERIOD GRANTED TO PURCHASER HEREUNDER FOR A MONETARY DEFAULT OR A
NON-MONETARY DEFAULT (WHETHER OR NOT NOTICE OF SAME IS GIVEN TO PURCHASER) THAT
WOULD EXTEND PAST THE CLOSING DATE SHALL BE AUTOMATICALLY SHORTENED TO EXPIRE AS
OF THE TIME AND DATE SET FOR CLOSING IN ACCORDANCE WITH SECTION 8.1(a)), AND
PROVIDED THAT ALL CONDITIONS TO PURCHASER'S OBLIGATIONS TO CONSUMMATE THE
TRANSACTIONS HEREIN CONTEMPLATED EITHER HAVE BEEN SATISFIED OR SELLER
DEMONSTRATES THAT THE SAME WOULD HAVE BEEN SATISFIED BUT FOR PURCHASER'S
DEFAULT, SELLER SHALL BE ENTITLED TO RETAIN THE DEPOSIT AS SELLER'S LIQUIDATED
DAMAGES AND SUCH AMOUNT SHALL, SUBJECT TO THE
30
PROCEDURES SET FORTH IN SECTION 13, PROMPTLY BE PAID TO SELLER BY ESCROW AGENT
AND NEITHER PARTY SHALL HAVE ANY FURTHER OBLIGATIONS HEREUNDER TO THE OTHER OR
ANY RIGHT TO ANY OTHER REMEDIES AGAINST THE OTHER. SELLER HEREBY WAIVES ITS
RIGHT TO COLLECT ALL OTHER DAMAGES, RIGHTS AND REMEDIES, AND AGREES THAT THE
FOREGOING SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY