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ARTICLE 12
<br />DEFAULT; REMEDIES
<br />12.1 If Buyer fails to consummate this Agreement for any reason whatsoever other than
<br />Seller's default, Seller may, as Seller's sole remedy, terminate this Agreement and retain the Earnest
<br />Money as liquidated damages, in which event neither Buyer nor Seller shall have any further obligations
<br />under this Agreement, except as to those obligations provided for herein which are intended to survive
<br />termination of this Agreement. Seller and Buyer acknowledge the difficulty and inconvenience of
<br />ascertaining Seller's actual damages in the event of Buyer's default and agree that the Earnest Money
<br />will be paid to Seller as liquidated damages and not as a penalty, which amount the parties agree is a
<br />reasonable sum considering all of the circumstances existing on the date of this Agreement, including,
<br />without limitation, the relationship of the amount of the Earnest Money to the range of harm to Seller
<br />that reasonably could be anticipated because of Buyer's breach hereof, Seller's anticipated use of the
<br />proceeds of sale and the fact that proof of actual damages would be impracticable.
<br />12.2 If Seller fails to consummate this Agreement for any reason whatsoever, other than
<br />Buyer' s default, Buyer shall, as Buyer's sole remedy, select any one of the following: (i) terminate this
<br />Agreement, in which event Buyer shall be entitled to return of the Earnest Money and neither Seller nor
<br />Buyer shall have any further obligations under this Agreement, except those matters expressly provided
<br />in this Agreement to survive termination; (ii) purchase the Project notwithstanding such default, with no
<br />reduction in the Purchase Price, pursuant to the remaining terms of this Agreement thereby waiving any
<br />claim for default or any claim for reimbursement to Buyer; or (iii) enforce specific performance of
<br />Seller's obligations under this Agreement; provided, however, that any such action for specific
<br />performance must be instituted, if at all, by commencement of such action ninety (90) days after the date
<br />of the breach or alleged breach by Seller, and, if such action is not so instituted within such period of
<br />time, the Buyer shall be deemed conclusively to have waived the right to institute such action and to have
<br />elected to pursue the other remedies provided hereinabove; if any, and provided further, however, that no
<br />action for specific performance may be instituted by Buyer against Seller with respect to any breach of a
<br />representation and warranty or failure of any condition due to any cause not reasonably within the control
<br />of Seller, Buyer's remedies in such event being limited to termination or waiver as described above.
<br />Buyer hereby expressly waives its rights to seek damages of any kind or nature, including, without
<br />limitation, special, indirect or consequential damages in the event of Seller's default hereunder.
<br />12.3 In the event of litigation between Seller and Buyer regarding this Agreement, the
<br />prevailing party shall be entitled to recover reasonable attorney fees, costs, and expenses (including
<br />expert fees and costs) incurred in connection with the prosecution or defense of such action, including
<br />any appeal, in addition to all other relief. For the purposes of this Agreement, "prevailing party" shall
<br />mean the party which obtains the principal relief it has sought, whether by compromise, settlement,
<br />judgment or otherwise. In addition, the non -prevailing party shall be responsible for payment of any and
<br />all actual third party costs and/or expenses (including, without limitation, reasonable attorney's fees and
<br />expert fees) incurred by the prevailing party in the enforcement of any of its rights and/or remedies under
<br />this Agreement, at law or, in equity.
<br />ARTICLE 13
<br />AS -IS SALE; RELEASE
<br />13.1 As -Is Sale. Except as otherwise specifically provided in Section 9.1 of this Agreement,
<br />Seller has not made, does not make and specifically disclaims any representations, warranties, promises,
<br />covenants, agreements or guarantees of any kind or character whatsoever, whether express or implied,
<br />oral or written, past, present or future, of, as to, concerning or with respect to: (a) the nature, quality or
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