10.5 Remedies; Indemnification.
(a) IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO THE FAILURE OF ANY
CONDITION PRECEDENT AND NO BUYER'S
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DEFAULT HAS OCCURRED, THEN SELLER SHALL PAY ALL BUYER'S TRANSACTION EXPENSES AS
REQUIRED IN SECTION 7 OF THIS AGREEMENT. IF ALL OF THE CONDITIONS TO SELLER'S
OBLIGATION TO CLOSE SET FORTH IN SECTION 9.2 OF THIS AGREEMENT HAVE BEEN
SATISFIED AND THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE SOLELY TO A
SELLER'S DEFAULT, THEN, AS BUYER'S SOLE AND EXCLUSIVE REMEDY, BUYER MAY EITHER:
(1) TERMINATE THIS AGREEMENT, IN WHICH EVENT NEITHER PARTY SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER (EXCEPT AS PROVIDED IN THOSE SECTIONS
WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION, SECTION 7.2); OR (2) ENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT,
IN WHICH CASE SELLER SHALL PAY ANY AND ALL REASONABLE OUT-OF-POCKET COSTS AND
EXPENSES INCURRED BY BUYER ON ACCOUNT OF SUCH DEFAULT AND/OR IN ENFORCING OR
ESTABLISHING ITS RIGHTS HEREUNDER, INCLUDING, WITHOUT LIMITATION, COURT COSTS
AND REASONABLE ATTORNEYS' FEES AND EXPENSES. PROVIDED SELLER HAS TENDERED
PAYMENT TO BUYER FOR ALL OF ITS OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, PURSUANT TO SECTION 7.2 OF THIS AGREEMENT), BUYER SHALL BE
DEEMED TO HAVE ELECTED ITS REMEDY UNDER CLAUSE (1) OF THIS PARAGRAPH IF BUYER
FAILS TO FILE SUIT FOR SPECIFIC PERFORMANCE AGAINST SELLER IN A COURT HAVING
JURISDICTION IN THE COUNTY (OR CITY) AND THE STATE WHERE THE PROPERTY IS
LOCATED, ON OR BEFORE NINETY (90) DAYS FOLLOWING THE LATER OF: (Y) THE DATE OF
THE SELLER'S DEFAULT OR (Z) THE DATE ON WHICH THE CLOSING WAS TO HAVE OCCURRED.
THE PARTIES HAVE AGREED THAT IN THE EVENT THAT ALL OF THE CONDITIONS TO BUYER'S
OBLIGATION TO CLOSE SET FORTH IN SECTION 9.1 HAVE BEEN SATISFIED AND THE SALE OF
THE PROPERTY IS NOT CONSUMMATED DUE SOLELY TO A BUYER'S DEFAULT, IT WOULD BE
EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE SELLER'S DAMAGES. AFTER
NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF ONE MILLION DOLLARS
($1,000,000) IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN
THE EVENT OF A BUYER'S DEFAULT. IN THE EVENT THAT A BUYER'S DEFAULT IS THE SOLE
REASON THE SALE OF THE PROPERTY IS NOT CONSUMMATED, BUYER SHALL DELIVER TO
SELLER THE AMOUNT OF ONE MILLION DOLLARS ($1,000,000), AS AGREED LIQUIDATED
DAMAGES, AND THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE.
BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY
OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY
COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION. THIS SECTION 10.5(a) IS NOT INTENDED TO LIMIT
SELLER'S RIGHTS UNDER ANY OF SECTIONS 7.1 OR 11.3 OR BUYER'S RIGHTS UNDER ANY OF
SECTIONS 5.4, 7.1, 7.2 or 10.5(b). UPON A TERMINATION OF THIS
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AGREEMENT IN ACCORDANCE WITH THIS SECTION