Franchisor in accordance with
the Franchise Agreement all items of personal property marked with Franchisor's
name or other marks, such items shall not be a part of the Purchased Assets and
Purchaser shall receive no credit against the Purchase Price as a result of the
removal of such items from the Property.
V.
REMEDIES
5.01 PURCHASER'S DEFAULT/SELLER'S REMEDIES. IF PURCHASER DEFAULTS UNDER
THIS AGREEMENT OR OTHERWISE FAILS TO CLOSE THE TRANSACTIONS SET FORTH IN THIS
AGREEMENT, FOR ANY REASON EXCEPT (A) THE FAILURE OF ANY CONDITION PRECEDENT TO
PURCHASER'S OBLIGATIONS UNDER THIS AGREEMENT OR (B) PURCHASER'S TERMINATION OF
THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS, SELLER SHALL BE ENTITLED AS ITS
SOLE REMEDY UNDER THIS AGREEMENT TO TERMINATE THIS AGREEMENT AND RECOVER THE
EARNEST MONEY (IN ADDITION TO ATTORNEYS' FEES PURSUANT TO SECTION 5.03 BELOW, IF
APPLICABLE) AS LIQUIDATED DAMAGES AND NOT AS A PENALTY (WHICH EARNEST MONEY
SHALL BE PROMPTLY PAID BY ESCROW AGENT TO SELLER UPON SELLER'S AND PURCHASER'S
JOINT WRITTEN NOTICE THEREOF TO ESCROW AGENT), IN FULL SATISFACTION OF ANY
CLAIMS AGAINST PURCHASER UNDER THIS AGREEMENT. IN CONNECTION THEREWITH, SELLER
WAIVES ITS RIGHT TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT FROM PURCHASER.
SELLER AND PURCHASER AGREE THAT THE SELLER'S DAMAGES RESULTING FROM PURCHASER'S
DEFAULT ARE DIFFICULT TO DETERMINE AND THE AMOUNT OF THE EARNEST MONEY IS A FAIR
ESTIMATE OF THOSE DAMAGES. EACH PARTY HEREBY WAIVES ANY AND ALL RIGHTS TO
CONTEST THE VALIDITY OF THE FOREGOING LIQUIDATED DAMAGES PROVISIONS FOR ANY
REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, SUCH PROVISION BEING
UNREASONABLE UNDER CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE OR AT THE TIME
OF DEFAULT. NOTWITHSTANDING THE FOREGOING, THE ASSERTION OR PAYMENT OF THE
FOREGOING LIQUIDATED DAMAGES SHALL NOT BE DEEMED TO BE A WAIVER OF ANY RIGHTS OR
REMEDIES THAT SELLER MAY HAVE AGAINST PURCHASER PURSUANT TO ANY PROVISION OF
THIS AGREEMENT THAT SPECIFICALLY PROVIDES THAT IT SURVIVES THE TERMINATION OF
THIS AGREEMENT.
Seller's Initials:
Purchaser's Initials:
5.02 SELLER DEFAULT/PURCHASER'S REMEDIES. IF SELLER DEFAULTS UNDER THIS
AGREEMENT OR OTHERWISE FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT ON
OR PRIOR TO THE CLOSING, FOR ANY REASON EXCEPT THE FAILURE OF ANY CONDITION
PRECEDENT TO SELLER'S OBLIGATIONS UNDER THIS AGREEMENT, THEN ANY ONE OF THE
FOLLOWING, AND ONLY THE FOLLOWING, SHALL BE AVAILABLE TO PURCHASER AS ITS SOLE
AND EXCLUSIVE REMEDY: (A) TO TERMINATE THIS AGREEMENT BY GIVING SELLER WRITTEN
NOTICE OF SUCH ELECTION PRIOR TO OR AT CLOSING WHEREUPON THE ESCROW AGENT SHALL
PROMPTLY RETURN TO PURCHASER THE EARNEST MONEY, AND THE PARTIES SHALL HAVE NO
FURTHER RIGHTS OR LIABILITIES UNDER THIS AGREEMENT EXCEPT (1) FOR THOSE
PROVISIONS WHICH SPECIFICALLY PROVIDE THAT THEY SURVIVE THE TERMINATION OF THIS
AGREEMENT AND (2) SELLER SHALL REIMBURSE PURCHASER FOR (i) PURCHASER'S ACTUAL
THIRD-PARTY OUT OF POCKET DUE DILIGENCE COSTS AND OUTSIDE LEGAL FEES, IN AN
AMOUNT NOT TO EXCEED FIFTY THOUSAND DOLLARS ($50,000) and (ii) PURCHASER'S
ACTUAL NON-REFUNDABLE FEES AND COSTS PAID BY SELLER TO FRANCHISOR IN CONNECTION
WITH OBTAINING A NEW LICENSE OR FRANCHISE AGREEMENT FOR