Common use of Disposition of Escrow Deposit Clause in Contracts

Disposition of Escrow Deposit. 9.1 IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER’S DEFAULT UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NO PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER (EXCEPT UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT); PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE BY REASON OF SELLER’S DEFAULT, THEN BUYER SHALL BE ENTITLED TO EITHER (1) SPECIFICALLY ENFORCE THIS AGREEMENT OR (2) TERMINATE THIS AGREEMENT AND OBTAIN A RETURN OF THE ESCROW DEPOSIT AND UPON SUCH TERMINATION BUYER SHALL BE ENTITLED TO RECOVER FROM SELLER ALL OF BUYER’S REASONABLE, OUT-OF-POCKET, DOCUMENTED COSTS AND EXPENSES ACTUALLY INCURRED IN CONNECTION WITH THE NEGOTIATION AND DELIVERY OF THIS AGREEMENT, ALL DUE DILIGENCE PERFORMED BY OR ON BEHALF OF BUYER IN CONNECTION WITH THE PROPERTY AND ALL COSTS INCURRED IN CONNECTION WITH BUYER’S EFFORTS TO OBTAIN FINANCING FOR THE PROPERTY; PROVIDED, THAT SELLER’S OBLIGATION TO REIMBURSE BUYER FOR SUCH COSTS AND EXPENSES SHALL NOT EXCEED $150,000.00. NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED, AND BUYER SPECIFICALLY WAIVES THE RIGHT TO RECOVER EITHER CONSEQUENTIAL OR EXEMPLARY DAMAGES, AND FURTHER WAIVES THE RIGHT TO A JURY TRIAL. 9.2 IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6 OR THE DEFAULT OF SELLER, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT, AND IN SUCH EVENT, BUYER SHALL NOT BE LIABLE TO SELLER FOR MONETARY DAMAGES EXCEPT FOR FORFEITURE OF THE ESCROW DEPOSIT (AND AS PROVIDED UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT). IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER’S BREACH OR DEFAULT. IN THE EVENT THE SALE CONTEMPLATED HEREBY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER’S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT AND THE PARTIES SHALL TAKE SUCH ACTION AS MAY BE REQUIRED TO CAUSE THE ESCROW DEPOSIT TO BE DELIVERED TO SELLER.

Disposition of Escrow Deposit. 9.1 IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER’S DEFAULT UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6Escrow Agent will hold the Escrow Deposit in its possession under the provisions of this Agreement until authorized hereunder to deliver the Escrow Deposit or any specified portion thereof as follows: (a) On the Closing Date (as defined in Section 1.03 of the Securities Purchase Agreement), THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYEREscrow Agent shall, AND NO PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER upon receipt of joint written instructions from Buyer and the Selling Shareholders Representative and in accordance therewith, disburse the Escrow Deposit held on such date to the Selling Shareholders Representative, less the amounts, if any, covered by the Buyer's Purchase Price Claim Notice (EXCEPT UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENTas defined below) pursuant to clause (i) of this subsection (a). Escrow Agent shall retain in the Escrow Account such amounts and shall only release such funds in accordance with clause (ii) of this subsection (a). (i) If the Closing (as defined in Section 1.03 of the Securities Purchase Agreement) occurs prior to final determination of the Purchase Price adjustments pursuant to Section 1.04 of the Securities Purchase Agreement (including the dispute resolution mechanisms contained therein), Escrow Agent shall, at Closing, disburse the Escrow Deposit held on such date to the Selling Shareholders Representative, less any amounts covered by any claim notice (the "Buyer's Purchase Price Claim Notice") delivered by Buyer to the Escrow Agent on or prior to the Closing Date (the "Disputed Purchase Price"); PROVIDED, HOWEVERTHAT, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE BY REASON OF SELLER’S DEFAULTand only to the extent that, THEN BUYER SHALL BE ENTITLED TO EITHER such Disputed Purchase Price satisfies the criteria for the holding back of disputed amounts by Escrow Agent set forth in the last sentence of Section 1.04 (1) SPECIFICALLY ENFORCE THIS AGREEMENT OR (2) TERMINATE THIS AGREEMENT AND OBTAIN A RETURN OF THE ESCROW DEPOSIT AND UPON SUCH TERMINATION BUYER SHALL BE ENTITLED TO RECOVER FROM SELLER ALL OF BUYER’S REASONABLE, OUT-OF-POCKET, DOCUMENTED COSTS AND EXPENSES ACTUALLY INCURRED IN CONNECTION WITH THE NEGOTIATION AND DELIVERY OF THIS AGREEMENT, ALL DUE DILIGENCE PERFORMED BY OR ON BEHALF OF BUYER IN CONNECTION WITH THE PROPERTY AND ALL COSTS INCURRED IN CONNECTION WITH BUYER’S EFFORTS TO OBTAIN FINANCING FOR THE PROPERTY; PROVIDED, THAT SELLER’S OBLIGATION TO REIMBURSE BUYER FOR SUCH COSTS AND EXPENSES SHALL NOT EXCEED $150,000.00. NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED, AND BUYER SPECIFICALLY WAIVES THE RIGHT TO RECOVER EITHER CONSEQUENTIAL OR EXEMPLARY DAMAGES, AND FURTHER WAIVES THE RIGHT TO A JURY TRIAL. 9.2 IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6 OR THE DEFAULT OF SELLER, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT, AND IN SUCH EVENT, BUYER SHALL NOT BE LIABLE TO SELLER FOR MONETARY DAMAGES EXCEPT FOR FORFEITURE OF THE ESCROW DEPOSIT (AND AS PROVIDED UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENTc). IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER’S BREACH OR DEFAULT. IN THE EVENT THE SALE CONTEMPLATED HEREBY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER’S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT AND THE PARTIES SHALL TAKE SUCH ACTION AS MAY BE REQUIRED TO CAUSE THE ESCROW DEPOSIT TO BE DELIVERED TO SELLER.

Disposition of Escrow Deposit. 9.1 IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER’S DEFAULT UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6Escrow Agent shall hold the Purchase Price Escrow Deposit and the Option Escrow Deposit (collectively, THEN THE the "ESCROW DEPOSIT SHALL BE RETURNED TO BUYERDEPOSIT") in its possession pursuant to the terms and provisions of this Agreement and shall distribute the Escrow Deposit to the respective parties as set forth below: (a) On the Closing Date, AND NO PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER the Escrow Agent shall distribute: (EXCEPT UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT)i) the Purchase Price Escrow Deposit to the Selling Optionholder and (ii) the Option Assignment Instruments covering all the Options to Buyer; PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE BY REASON that, upon receipt of a notice of any claim (a "NOTICE OF SELLER’S DEFAULTCLAIM") by the Selling Optionholder or Buyer for amounts owed to it pursuant to the indemnification provisions contained in Section 5.02 and 5.03 hereof or otherwise pursuant to this Agreement, THEN BUYER SHALL BE ENTITLED TO EITHER as more fully set forth herein (1each, a "CLAIM"), Escrow Agent shall distribute the Escrow Deposit on or after January 5, 1997 in accordance with 1.05(b) SPECIFICALLY ENFORCE THIS AGREEMENT OR (2) TERMINATE THIS AGREEMENT AND OBTAIN A RETURN OF THE ESCROW DEPOSIT AND UPON SUCH TERMINATION BUYER SHALL BE ENTITLED TO RECOVER FROM SELLER ALL OF BUYER’S REASONABLE, OUT-OF-POCKET, DOCUMENTED COSTS AND EXPENSES ACTUALLY INCURRED IN CONNECTION WITH THE NEGOTIATION AND DELIVERY OF THIS AGREEMENT, ALL DUE DILIGENCE PERFORMED BY OR ON BEHALF OF BUYER IN CONNECTION WITH THE PROPERTY AND ALL COSTS INCURRED IN CONNECTION WITH BUYER’S EFFORTS TO OBTAIN FINANCING FOR THE PROPERTY; PROVIDED, THAT SELLER’S OBLIGATION TO REIMBURSE BUYER FOR SUCH COSTS AND EXPENSES SHALL NOT EXCEED $150,000.00. NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED, AND BUYER SPECIFICALLY WAIVES THE RIGHT TO RECOVER EITHER CONSEQUENTIAL OR EXEMPLARY DAMAGES, AND FURTHER WAIVES THE RIGHT TO A JURY TRIALbelow. 9.2 IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6 OR THE DEFAULT OF SELLER(b) Promptly upon receipt of any Notice of Claim, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENTEscrow Agent shall mail a copy of such notice to the other parties, AND IN SUCH EVENTspecifying the date on which Escrow Agent received such Notice of Claim. Escrow Agent shall retain in the Purchase Price Escrow Account an amount equal to the amount set forth in the Notice of Claim (the "DISPUTED AMOUNT") and shall retain in the Option Escrow Account such proportion of the Options (the "DISPUTED OPTIONS") that is equal to the proportion that the Disputed Amount bears to the Purchase Price. Thereafter, BUYER SHALL NOT BE LIABLE TO SELLER FOR MONETARY DAMAGES EXCEPT FOR FORFEITURE OF THE ESCROW DEPOSIT Escrow Agent shall distribute any undisputed amounts in the Escrow Account to the Selling Optionholder and any undisputed portion of the Options to Buyer. (AND AS PROVIDED UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENTc) Escrow Agent shall continue to hold any undistributed portions of the Escrow Deposit in escrow and shall only distribute same upon delivery of and in accordance with (i) joint written instructions of Buyer and the Selling Optionholder or (ii) written instructions of Buyer or the Selling Optionholder certifying that the dispute with respect to the Claim has been determined and resolved by entry of a final order, decree or judgment by a court of competent jurisdiction in the United States (the time for appeal therefrom having expired and no appeal having been perfected), or consent to entry of any judgment concerning the Claim, which instructions shall be accompanied by a copy of any such order, decree or judgment certified by the clerk of such court. (d) For purposes of enabling Escrow Agent to distribute Options to Buyer strictly in accordance with the provisions of this Agreement, Selling Optionholder hereby authorizes Escrow Agent to insert the date, and fill in the appropriate number of Options, into one or more of the blank Option Assignment Instruments. (e) At the Closing or as provided in Section 6.02 hereof, Escrow Agent shall distribute to Buyer the Escrow Interest earned on the Purchase Price Escrow Deposit from the date of establishment of the Purchase Price Escrow Account through the date of such distribution. IN CONNECTION WITH THE FOREGOINGIn the event that any amounts are held as disputed funds under Section 1.05(b) or (c) above on the Closing Date, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHERthe Escrow Interest earned after the Closing Date attributable thereto shall be retained by Escrow Agent in the Purchase Price Escrow Account and shall be distributed by Escrow Agent to the party which ultimately prevails on the related Claim or, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER’S BREACH OR DEFAULTif both parties ultimately prevail, in accordance with their respective interests therein. (f) Each party shall be responsible for all taxes payable on any Escrow Interest distributed to it. IN THE EVENT THE SALE CONTEMPLATED HEREBY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER’S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT AND THE PARTIES SHALL TAKE SUCH ACTION AS MAY BE REQUIRED TO CAUSE THE ESCROW DEPOSIT TO BE DELIVERED TO SELLERAny taxes which become due with respect to accrued interest on any disputed funds held by Escrow Agent pursuant to Section 1.05(b) or (c) hereof shall be paid by Escrow Agent out of such disputed funds.

Disposition of Escrow Deposit. 9.1 IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER’S DEFAULT UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION If the transaction herein provided shall not close by reason of Seller’s default under this Agreement or the failure of satisfaction of the conditions benefiting Buyer under Section 4 OR SECTION or the termination of this Agreement in accordance with Section 6, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYERthen any remaining Escrow Deposit shall be immediately returned to Buyer, AND NO PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER and no party shall have any further obligation or liability to the other (EXCEPT UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENTexcept under those provisions of the TIC Agreement or the provisions of this Agreement that expressly survive a termination of this Agreement); PROVIDEDprovided, HOWEVERhowever, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE BY REASON OF SELLER’S DEFAULTif the transactions, THEN BUYER SHALL BE ENTITLED TO EITHER or some of them, provided for hereunder shall fail to close by reason of Seller’s default, then Buyer shall be entitled to either (1) SPECIFICALLY ENFORCE THIS AGREEMENT OR specifically enforce this Agreement or (2) TERMINATE THIS AGREEMENT AND OBTAIN A RETURN OF THE ESCROW DEPOSIT AND UPON SUCH TERMINATION BUYER SHALL BE ENTITLED TO RECOVER FROM SELLER ALL OF BUYER’S REASONABLEterminate Buyer’s remaining purchase obligations under this Agreement and obtain a return of any remaining Escrow Deposit, OUT-OF-POCKETbut no other action, DOCUMENTED COSTS AND EXPENSES ACTUALLY INCURRED IN CONNECTION WITH THE NEGOTIATION AND DELIVERY OF THIS AGREEMENTfor rescission of previously completed transfers of partial interests hereunder, ALL DUE DILIGENCE PERFORMED BY OR ON BEHALF OF BUYER IN CONNECTION WITH THE PROPERTY AND ALL COSTS INCURRED IN CONNECTION WITH BUYER’S EFFORTS TO OBTAIN FINANCING FOR THE PROPERTY; PROVIDEDfor damages or otherwise, THAT SELLER’S OBLIGATION TO REIMBURSE BUYER FOR SUCH COSTS AND EXPENSES SHALL NOT EXCEED $150,000.00. NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED, AND BUYER SPECIFICALLY WAIVES THE RIGHT TO RECOVER EITHER CONSEQUENTIAL OR EXEMPLARY DAMAGES, AND FURTHER WAIVES THE RIGHT TO A JURY TRIALshall be permitted. 9.2 IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY BY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE BUYER’S DEFAULT (ALL CONDITIONS BENEFITTING BENEFITING BUYER UNDER SECTION 4 HAVING BEEN SATISFIED OR SECTION 6 OR THE DEFAULT OF SELLERWAIVED IN WRITING), THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT, AND IN SUCH EVENT, BUYER SHALL NOT BE LIABLE TO SELLER FOR MONETARY DAMAGES EXCEPT FOR FORFEITURE OF THE ESCROW DEPOSIT (AND AS PROVIDED UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT). IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER’S BREACH OR DEFAULT. IN THE EVENT THE SALE CONTEMPLATED HEREBY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER’S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT AND THE PARTIES SHALL TAKE SUCH ACTION AS MAY BE REQUIRED TO CAUSE THE ESCROW DEPOSIT TO BE DELIVERED TO SELLER. NOTWITHSTANDING ANYTHING HEREIN CONTAINED TO THE CONTRARY, IF ANY OF THE TRANSACTIONS PROVIDED FOR HEREUNDER SHALL FAIL TO CLOSE BY REASON OF BUYER’S DEFAULT, SELLER SHALL HAVE FULLY PERFORMED OR HAVE TENDERED FULL PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE AND SELLER HAS GIVEN BUYER WRITTEN NOTICE TO BUYER OF ITS ELECTION TO PROCEED UNDER THIS SENTENCE WITHIN THIRTY (30) DAYS AFTER SUCH DEFAULT, THEN SELLER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT (AND SELLER SHALL NOT, AS TO THE PENDING TRANSFER OF AN INTEREST IN THE PROPERTY, BE ENTITLED TO THE FOREGOING LIQUIDATED DAMAGES BY REASON OF SUCH DEFAULT OF BUYER, OR TO BRING ANY OTHER ACTION, FOR DAMAGES OR OTHERWISE, EXCEPT FOR DAMAGES CUSTOMARILY AVAILABLE IN SPECIFIC PERFORMANCE ACTIONS RESULTING FROM A DELAY IN THE CLOSING, PROVIDED, FURTHER, THAT SUCH SPECIFIC PERFORMANCE ACTION SHALL BE FILED AND PROSECUTED PURSUANT TO AN ARBITRATION PROCEEDING UNDER SECTION 10 OF THIS AGREEMENT. 9.3 In the event the transaction herein provided shall close, the Escrow Deposit shall be applied as a partial payment of the Purchase Price or Installment Purchase Price, in accordance with the provisions of Section 3.1 hereof, if applicable. 9.4 Notwithstanding anything to the contrary in this Agreement, in no event shall Buyer or Seller be liable to the other for any consequential or punitive damages with respect to defaults under this Agreement.

Disposition of Escrow Deposit. 9.1 IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER’S 'S DEFAULT UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING AGREEMENT, AND BUYER SHALL NOT HAVE DEFAULTED UNDER SECTION 4 OR SECTION 6THIS AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NO PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER (EXCEPT UNDER THOSE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENTAS PROVIDED IN SECTIONS 10.1 AND 10.10); PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL FAIL TO CLOSE SOLELY BY REASON OF SELLER’S 'S DEFAULT, AND BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN BUYER SHALL BE ENTITLED TO EITHER (1) SPECIFICALLY ENFORCE THIS AGREEMENT OR (2) TERMINATE THIS AGREEMENT AND OBTAIN A RETURN OF THE ESCROW DEPOSIT AND UPON SUCH TERMINATION BUYER SHALL BE ENTITLED TO RECOVER FROM SELLER ALL OF BUYER’S REASONABLE, OUT-OF-POCKET, DOCUMENTED COSTS AND EXPENSES ACTUALLY INCURRED IN CONNECTION WITH THE NEGOTIATION AND DELIVERY OF THIS AGREEMENT, ALL DUE DILIGENCE PERFORMED BY OR ON BEHALF OF BUYER IN CONNECTION WITH THE PROPERTY AND ALL COSTS INCURRED IN CONNECTION WITH BUYER’S EFFORTS TO OBTAIN FINANCING FOR THE PROPERTY; PROVIDED, THAT SELLER’S OBLIGATION TO REIMBURSE BUYER FOR SUCH COSTS AND EXPENSES SHALL NOT EXCEED $150,000.00. BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED, AND BUYER SPECIFICALLY WAIVES THE RIGHT TO RECOVER EITHER CONSEQUENTIAL OR EXEMPLARY DAMAGES, AND FURTHER WAIVES THE RIGHT TO A JURY TRIAL. 9.2 ). IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE FOR ANY REASON OTHER THAN THE FAILURE OF SATISFACTION OF THE CONDITIONS BENEFITTING BUYER UNDER SECTION 4 OR SECTION 6 OR THE DEFAULT OF SELLER, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT. IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL CLOSE, AND IN SUCH EVENT, BUYER SHALL NOT BE LIABLE TO SELLER FOR MONETARY DAMAGES EXCEPT FOR FORFEITURE OF THE ESCROW DEPOSIT (AND SHALL BE APPLIED AS PROVIDED UNDER THOSE PROVISIONS A PARTIAL PAYMENT OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT)THE PURCHASE PRICE. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY SUBJECT PARTNERSHIP INTEREST, WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER’S 'S BREACH OR DEFAULT. IN THE EVENT THE SALE CONTEMPLATED HEREBY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER’S 'S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER’S 'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF THIS SUBSECTIONS 10.1 AND 10.10 AND SECTION 6.2D OF THE OPERATING PARTNERSHIP AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT (AS TO WHICH BUYER SHALL HAVE NO FURTHER RIGHTS) AND THE PARTIES SHALL TAKE SUCH ACTION AS MAY BE REQUIRED TO CAUSE THE ESCROW DEPOSIT TO BE DELIVERED TO SELLER.. _____________________ ___________________ Buyer's Initials Seller's Initials