Seller and each of the
parties comprising Seller and each of their members, partners, officers,
trustees, employees, representatives, agents, lenders, related and affiliated
entities, successors and assigns harmless from and against any and all claims,
demands, liabilities, judgments, penalties, losses, costs, damages, and expenses
(including, without limitation, attorneys' and experts' fees and costs) relating
to or arising in any manner whatsoever from any studies, evaluations,
inspections, investigations or tests made by Buyer or Buyer's agents or
representatives relating to or in connection with the Property or entries by
Buyer or its agents or representatives in, on or about the Property; provided,
Buyer shall not be liable to Seller under the foregoing indemnity solely as a
result of the discovery by Buyer of a pre-existing condition in or on the
Property. Notwithstanding any provision to the contrary in this Agreement, the
indemnity obligations of Buyer under this Agreement shall survive any
termination of this Agreement or the delivery of the Grant Deed and the transfer
of title. In addi tion to the foregoing indemnity, if there is any damage to the
Property caused by Buyer's and/or its agents' or representatives' entry in or on
the Property, Buyer shall immediately restore the Property substantially to the
same condition existing prior to Buyer's and its agents' or representatives'
entry in, on or about the Property.
5.
REMEDIES/LIQUIDATED DAMAGES.
5.1
BUYER'S DEFAULT.
IF BUYER FAILS TO COMPLETE THE
PURCHASE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT
OF BUYER (AND NOT DUE TO A FAILURE OF A CONDITION PRECEDENT), SELLER SHALL BE
RELEASED FROM ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER AND SELLER
HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY
DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT
OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE DEPOSITS AND THE DELIVERY TO SELLER
BY BUYER OF THE DUE DILIGENCE MATERIALS IS A REASONABLE APPROXIMATION THEREOF. A
CCORDINGLY, IN THE EVENT THAT BUYER BREACHES THIS AGREEMENT BY DEFAULTING IN THE
COMPLETION OF THE PURCHASE, THE DEPOSITS AND THE DELIVERY TO SELLER BY BUYER OF
THE DUE DILIGENCE MATERIALS SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED AND
LIQUIDATED DAMAGES OF SELLER, AND SHALL BE PAID BY BUYER TO SELLER AND THE TITLE
COMPANY AS SELLER'S SOLE AND EXCLUSIVE REMEDY. SELLER AGREES TO WAIVE ALL OTHER
REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY
REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING
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SHALL NOT LIMIT (I) BUYER'S OBLIGATIONS TO PAY TO SELLER ALL ATTORNEYS' FEES AND
COSTS OF SELLER TO ENFORCE THE PROVISIONS OF THIS SECTION 5.1 AND/OR BUYER'S
INDEMNITY OBLIGATIONS UNDER SECTIONS 4.4 AND 16 HEREOF, (II) BUYER'S INDEMNITY
OBLIGATIONS UNDER SECTIONS 4.4 AND 16 HEREOF, OR (III) THE ABILITY AND RIGHT OF
SELLER TO ENFORCE SUCH INDEMNITIES. EACH OF THE PAYMENT OF THE DEPOSITS, THE
PAYMENT BY BUYER OF ALL ESCROW CANCELLATION CHARGES AND FEES, AND