Agenda - 08-27-2012 - C1 - Laserfiche WebLink

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Each party agrees to defend and indemnify the other against any claim, liability,damage or expense asserted against or suffered by such other party arising out of the breach or inaccuracy of any such representation or warranty. ARTICLE 7: DEFAULT 7.1 Seller's Default. If Seller fails or refuses to consummate the sale of the Property pursuant to the terms of this Agreement or fails to perform any of Seller's obligations hereunder either prior to or at the Closing for any reason other than a termination of this Agreement by Seller pursuant to a right so to terminate expressly set forth in the Agreement or Purchaser's failure to perform Purchaser's obligations under this Agreement, then Purchaser shall have the right, as its sole and exclusive remedies hereunder, to either (i) terminate this Agreement and receive an immediate refund of the Earnest Money then on deposit with Escrow Agent, in full and final satisfaction of all obligations of Seller hereunder, or (iil enforce specific performance of this Agreement. Purchaser hereby waives any and all other remedies to which Purchaser may otherwise be entitled at law or in equity, including the right to seek or recover monetary damages from Seller; provided. however, and notwithstanding anything contained in this Section 7.1 to the contrary, Purchaser shall have the right to seek recovery of damages if the remedy of specific performance is not available. 7.2 Purchaser's Default. If this transaction fails to close due to the default of Purchaser, then Seller's sole and exclusive remedy in such event shall be to terminate this Agreement and to retain the Earnest Money as liquidated damages, Seller waiving all other rights or remedies in the event of such default by Purchaser. The parties acknowledge that Seller's actual damages in the event of a default by Purchaser under this Agreement will be difficult to ascertain, and that such liquidated damages represent the parties'best estimate of such damages. In lieu of the Earnest Money Seller may elect to receive without any representations or warranties from Purchaser,any non- proprietary reports or materials generated by or on behalf of Purchaser, including,but not Iimited to,environmental reports, surveys, sewer studies and site engineering, immediately atter the Earnest Money has been returned to Purchaser. 7.3 Opportunity to Cure. Notwithstanding anything herein to the contrary, neither party shall be deemed to be in default hereunder unless and until such party has received written notice of default from the other party and has failed to cure any such default within fifteen(i.5)days of receipt of notice of default. ARTICLE 8: EARNEST MONEY PROVISIONS 8.1 Delivery at Closing. If the Closing under this Agreement occurs,the Title Company shall deliver the Earnest Money to Seller on the Closing Date. 8.2 Termination Pursuant to Section 2.2. If Purchaser terminates this Agreement in accordance with Section 2.2,Title Company shall pay the entire Earnest Money to Purchaser within 2 business days following receipt of Purchaser's notice of termination and this Agreement shall thereupon terminate. No notice to Title Company from Seller shall be required for the release of the Earnest Money to Purchaser by Title Company pursuant to a termination under Section 2.2 of this Agreement. Seller agrees it shall have no right to bring any action against Title Company which would have the effect of delaying, preventing, or in any way interrupting Title Company's delivery of the Earnest Money to Purchaser pursuant to this paragraph, any remedy of Seller being against Purchaser,not Title Company. 8.3 Other Terminations. Upon a termination of this Agreement other than as described in Paragraph 8.2, either party to this Agreement (the "Terminating Party") may give written notice to the Title Company and the other party (the `Non-Terminating Party") of such termination and the reason for such termination. Such request shall also constitute a request for the release of the Earnest Money to the Terminating Party. The Non-Terminating Party shall then have five (5)business days in which to object in writing to the release of the Earnest Money to the Terminating Party. If the Non-Terminating Party provides such an objection, then the Title Company shall retain the Earnest Money until it receives written instructions executed by both Seller and Purchaser as to the disposition and disbursement of the Earnest Money, or until ordered by final court order,decree or judgment, which is not subject to appeal, to deliver the Earnest Money to a particular party, in which event the Earnest Money shall be delivered in accordance with such notice,instruction,order,decree or judgment. -7-