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4 <br /> I <br /> 8. Default. <br /> a. Seller will be in default of this Agreement if(I)it fails or refuses to sell the Property to Buyer at the <br /> Closing, or it(ii)fails to perform any of its other obligations either before or at the Closing and such failure is not <br /> cured within five (5) business days after written notice from Buyer. If Seller is in default, then Buyer is entitled <br /> either to (i) enforce specific performance of Seller's obligations under this Agreement with respect to the <br /> Property; or(ii)to terminate this Agreement by giving written notice to Seller before or at the Closing,whereupon <br /> neither part will have any further rights or obligations under this Agreement. <br /> b. Buyer will be in default of this Agreement if(i) it fails or refuses to grant the crossing licenses to <br /> Buyer without excuse therefor in accordance with the terms and conditions of Section 5, or it(ii)fails to perform <br /> any of its other obligations under this Agreement and such failure is not cured within five(5)business days after <br /> written notice from Seller. If Buyer is in default,then Seller is entitled either to(i) enforce specific performance of <br /> Buyer's obligations under this Agreement, including without limitation those obligations with respect to the <br /> Property and with respect to the crossing licenses under Section 5; or(ii) to terminate this Agreement by giving <br /> written notice to Buyer before or at the Closing, whereupon neither party will have any further rights or <br /> obligations under this Agreement. <br /> 9. Notices. All notices required or permitted by this Agreement shall be in writing and may be delivered in person <br /> (by hand or messenger or courier service) or may be sent by certified or registered mail or overnight express mail, with <br /> postage prepaid, and shall be deemed sufficiently given and served in a manner specified in this Section. The address <br /> set forth beneath each party's signature below shall be that party's address for purposes of giving notice. Either party <br /> may, by written notice to the other, specify a different or additional address for notice purposes. <br /> 10. Assignment. Buyer shall have the right to assign, sublease, or transfer this Agreement without Seller's consent. <br /> 11. Miscellaneous. <br /> a. Seller and Buyer agree to act in good faith and use diligence in completing the terms of-this Agreement. <br /> This instrument shall be binding upon the heirs, executors, administrators, successors or assigns of the undersigned and <br /> shall inure to the benefit of BNSF RAILWAY COMPANY, its successors and assigns. . <br /> b. This Agreement contains the entire agreement between Seller and Buyer with respect to the Property <br /> and, except as set forth in this Agreement, neither Seller, nor Seller's agents or employees have made any agreements, <br /> covenants, warranties or representations of any kind or character, express or implied, oral or written, with respect to the <br /> Property. <br /> c. This Agreement may be. executed in multiple counterparts, each of which shall, for all purposes, be <br /> deemed an original but which together shall constitute one and the same instrument, and the signature pages from any <br /> counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts of this <br /> Agreement may also be exchanged via electronic facsimile machines and any electronic facsimile of any patty's signature <br /> shall be deemed to be an original signature for all purposes; provided, however, that any signature pages transmitted by <br /> facsimile shall nevertheless be followed by the exchange of hard copy originals. <br /> d. If any clause or provision of this Agreement is illegal, invalid or unenforceable under present or future <br /> laws effective during the term of this Agreement, then and in that event, it is the intention of the parties hereto that the <br /> remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that <br /> in lieu of each clause or provision of this Agreement that is illegal, invalid or unenforceable, there be added, as a part of <br /> this Agreement, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as <br /> may be possible and be legal,valid and enforceable. <br /> e. If suit shall be successfully brought for breach of any covenant or agreement herein contained, the <br /> prevailing party shall be entitled to recover all costs and expenses of suit, including, but not limited to, reasonable <br /> attorneys'fees. <br /> 5 <br /> 51382125.11 <br /> 9 <br />