Default.
10.1 LIQUIDATED DAMAGES - DEPOSIT. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IF THE SALE OF THE PROPERTY TO BUYER IS
NOT CONSUMMATED BY REASON OF BUYER'S DEFAULT UNDER THIS AGREEMENT, SELLER SHALL
BE ENTITLED TO RETAIN THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND BUYER SHALL
THEREUPON BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER UNDER THIS AGREEMENT
OTHER THAN FOR INDEMNITIES THAT ARE EXPRESSLY INTENDED TO SURVIVE THE
TERMINATION OF THIS AGREEMENT. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE
AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY SELLER AS A
RESULT OF BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO
THIS AGREEMENT, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS
AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A
REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH
FAILURE. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS
NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE FAIR AND
REASONABLE COMPENSATION TO SELLER. THE PARTIES HAVE SET FORTH THEIR INITIALS
BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION
CONTAINED IN THIS SECTION.
10.2 Buyer's Remedies. In the event that Seller shall default in the
performance of Seller's obligations under this Agreement and the Closing does
not occur as a result thereof, Buyer shall be entitled, at Buyer's election, to
either (x) receive a return from Seller of the Deposit, together with interest
earned thereon (or to have Seller cause the Escrow Holder to make such a
return), plus Buyer's costs and expenses (excluding legal fees) incurred and
actually paid for examining title to the Property ("Purchaser's Title Costs (the
foregoing, collectively, a "Deposit Return"), or (y) pursue any and all remedies
available to a purchaser of real property, including for specific performance.
WITHOUT LIMITATION ON THE FOREGOING, BUYER SHALL HAVE NO RIGHT TO, AND BUYER
HEREBY WAIVES, ANY AND ALL CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY
DAMAGES, AND ANY OTHER DAMAGES WHICH WOULD BE PREDICATED IN WHOLE OR IN PART
UPON LOSS OF BARGAIN, OPPORTUNITY COSTS, OR ANY LOSS OF ANTICIPATED BENEFITS
INCURRED BY BUYER WITH RESPECT TO THIS AGREEMENT AND/OR ANY DEFAULT BY SELLER
UNDER THIS AGREEMENT. Upon Buyer's election to receive a Deposit Return, and its
actual receipt thereof, this Agreement shall then terminate and be of no further
force and effect, and Seller shall have no further obligation or liability to
Buyer, except where survival is expressly provided.
10.3 No Contesting Liquidated Damages. As material consideration to
each party's agreement to the liquidated damages provisions stated above, each
party hereby agrees to waive any and all rights whatsoever to contest the
validity of the liquidated damages provisions for any reason whatsoever,
including, but not limited to, that such provision was unreasonable under
circumstances existing at the time this Agreement was made.
11.
WAIVER OF TRIAL BY JURY.
SELLER AND BUYER, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY