MAY HAVE
UNDER ANY SUCH INSURANCE POLICIES AND OTHER SIMILAR ITEMS.
IF EITHER PARTY
ELECTS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION 5, THE
EARNEST MONEY SHALL BE RETURNED TO PURCHASER AND THIS AGREEMENT SHALL, WITHOUT
FURTHER ACTION OF THE PARTIES, BECOME NULL AND VOID AND NEITHER PARTY SHALL HAVE
ANY FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT EXCEPT AS OTHERWISE
PROVIDED FOR IN THIS AGREEMENT.
FOR PURPOSES OF THIS SECTION 5, A "MATERIAL
LOSS" MEANS CONDEMNATION, DAMAGE OR DESTRUCTION THAT IS REASONABLY ESTIMATED TO
COST OR BE VALUED AT (AS THE CASE MAY BE) MORE THAN FIVE MILLION AND NO/100
DOLLARS ($5,000,000.00) AS TO THE PROPERTY OR ANY PORTION THEREOF.
10
6.
BROKERAGE.
SELLER AGREES TO PAY UPON CLOSING (BUT NOT OTHERWISE)
A BROKERAGE COMMISSION DUE TO CUSHMAN AND WAKEFIELD FOR SERVICES RENDERED IN
CONNECTION WITH THE SALE AND PURCHASE OF THE PROPERTY.
SELLER AND PURCHASER
SHALL EACH INDEMNIFY AND HOLD THE OTHER HARMLESS FROM AND AGAINST ANY AND ALL
CLAIMS OF ALL OTHER BROKERS AND FINDERS CLAIMING BY, THROUGH OR UNDER THE
INDEMNIFYING PARTY AND IN ANY WAY RELATED TO THE SALE AND PURCHASE OF THE
PROPERTY, THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ATTORNEYS'
FEES AND EXPENSES INCURRED BY THE INDEMNIFIED PARTY IN CONNECTION WITH SUCH
CLAIM.
7.
DEFAULT AND REMEDIES.
7.1
PURCHASER'S REMEDIES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, IF CLOSING DOES NOT OCCUR DUE TO A SELLER DEFAULT,
THEN, AS PURCHASER'S SOLE AND EXCLUSIVE REMEDY HEREUNDER AND AT PURCHASER'S
OPTION, EITHER (A) THE EARNEST MONEY SHALL BE RETURNED TO PURCHASER, IN WHICH
EVENT THIS AGREEMENT SHALL BE NULL AND VOID, AND NEITHER PARTY SHALL HAVE ANY
RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, OR (B) UPON NOTICE TO SELLER NOT
MORE THAN TEN (10) DAYS AFTER PURCHASER BECOMES AWARE OF SUCH FAILURE, AND
PROVIDED AN ACTION IS FILED WITHIN THIRTY (30) DAYS THEREAFTER, PURCHASER MAY
SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT, BUT NOT DAMAGES; PROVIDED, HOWEVER,
IF SELLER'S WILLFUL OR INTENTIONAL BREACH OF THIS AGREEMENT (AND SELLER'S
CONVEYANCE OF THE PROPERTY TO A THIRD PARTY PRIOR TO THE TERMINATION OF THIS
AGREEMENT SHALL BE DEEMED A WILLFUL OR INTENTIONAL BREACH OF THIS AGREEMENT) IS
SUCH THAT SPECIFIC PERFORMANCE IS NO LONGER AVAILABLE AS A JUDICIAL REMEDY, THEN
PURCHASER MAY SEEK ANY AND ALL OTHER REMEDIES AT LAW OR IN EQUITY.
PURCHASER'S
FAILURE TO SEEK SPECIFIC PERFORMANCE AS AFORESAID SHALL CONSTITUTE ITS ELECTION
TO PROCEED UNDER CLAUSE (A) ABOVE.
7.2
SELLER'S REMEDIES.
PURCHASER AND SELLER ACKNOWLEDGE THAT IT WOULD
BE EXTREMELY IMPRACTICAL AND DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES WHICH
WOULD BE SUFFERED BY SELLER IF PURCHASER FAILS TO CONSUMMATE THE PURCHASE AND
SALE CONTEMPLATED HEREIN FOR ANY REASON OTHER THAN SELLER'S DEFAULT HEREUNDER IN
ANY MATERIAL RESPECT OR THE FAILURE OF CONDITION PRECEDENT TO PURCHASER'S
OBLIGATION TO CLOSE HEREUNDER.
PURCHASER AND SELLER HAVE CONSIDERED CAREFULLY
THE LOSS TO SELLER OCCASIONED BY TAKING THE PROPERTY OFF THE MARKET AS A
CONSEQUENCE OF THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT, THE EXPENSES