MONEY TO SELLER, AND SELLER SHALL, AS ITS SOLE AND EXCLUSIVE REMEDY,
HAVE THE RIGHT TO RETAIN THE EARNEST MONEY FOR SUCH DEFAULT OF BUYER, WHEREUPON
THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL HAVE NO FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER, EXCEPT FOR THOSE WHICH EXPRESSLY SURVIVE ANY SUCH
TERMINATION.
IT IS HEREBY AGREED THAT SELLER'S DAMAGES IN THE EVENT OF A
DEFAULT BY BUYER HEREUNDER ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT
THE EARNEST MONEY CONSTITUTES A REASONABLE LIQUIDATION OF SUCH DAMAGES AND IS
INTENDED NOT AS A PENALTY, BUT AS LIQUIDATED DAMAGES.
THIS PROVISION SHALL
EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT.
11.2
SELLER'S DEFAULT.
SUBJECT TO SECTION 7.3, IN THE
EVENT OF A PRE-CLOSING DEFAULT BY SELLER UNDER THE TERMS OF THIS AGREEMENT WHICH
IS NOT CURED BY SELLER, PRIOR TO OR ON THE CLOSING DATE AND AS PROVIDED
HEREUNDER, BUYER'S SOLE AND EXCLUSIVE REMEDIES HEREUNDER SHALL BE TO EITHER
(A) TERMINATE THIS AGREEMENT WHEREUPON BUYER WILL RECEIVE A REFUND OF THE
EARNEST MONEY FROM ESCROW AGENT AND NEITHER PARTY HERETO SHALL HAVE ANY FURTHER
OBLIGATION OR LIABILITY TO THE OTHER (EXCEPT WITH RESPECT TO THOSE PROVISIONS OF
THIS AGREEMENT WHICH EXPRESSLY SURVIVE THE TERMINATION HEREOF), BUYER HEREBY
WAIVING ANY RIGHT OR CLAIM TO DAMAGES FOR SELLER'S BREACH, OR (B) SEEK SPECIFIC
PERFORMANCE OF SELLER'S OBLIGATIONS UNDER THIS AGREEMENT (BUT NO OTHER ACTION,
FOR DAMAGES OR OTHERWISE, SHALL BE PERMITTED); PROVIDED THAT ANY ACTION BY BUYER
FOR SPECIFIC PERFORMANCE MUST BE FILED, IF AT ALL, WITHIN THIRTY (30) DAYS OF
SELLER'S DEFAULT, AND THE FAILURE TO FILE WITHIN SUCH PERIOD SHALL CONSTITUTE A
WAIVER BY BUYER OF SUCH RIGHT AND REMEDY.
IF BUYER SHALL NOT HAVE FILED AN
ACTION FOR SPECIFIC PERFORMANCE WITHIN THE AFOREMENTIONED TIME PERIOD OR SO
NOTIFIED SELLER OF ITS ELECTION TO TERMINATE THIS AGREEMENT, BUYER'S SOLE REMEDY
SHALL BE TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH CLAUSE (A) ABOVE.
11.3
LIMITATION ON LIABILITY.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED
IN CONNECTION HEREWITH, IF, FOLLOWING THE CLOSING, BUYER FIRST LEARNS THAT ANY
REPRESENTATIONS OR WARRANTIES MADE BY SELLER (AS MAY BE AMENDED PURSUANT TO
SECTION 7.3) WERE MATERIALLY INACCURATE AS OF THE EFFECTIVE DATE OR THE CLOSING
DATE OR THAT SELLER FAILED TO SATISFY ANY OF ITS COVENANTS OR BREACHED ANY OF
ITS INDEMNIFICATION OR OTHER OBLIGATIONS (WHETHER EXPRESS OR IMPLIED) OF SELLER
UNDER THIS AGREEMENT (OR ANY DOCUMENT OR CERTIFICATE EXECUTED OR DELIVERED IN
CONNECTION HEREWITH), THEN SELLER SHALL REIMBURSE BUYER FOR ALL DAMAGES (ACTUAL,
BUT NOT CONSEQUENTIAL) ACTUALLY INCURRED BY BUYER AS A RESULT THEREOF, UP TO A
MAXIMUM AGGREGATE AMOUNT FOR ALL SUCH FAILURES AND BREACHES OF TEN MILLION
DOLLARS ($10,000,000.00), PROVIDED THAT (I) BUYER NOTIFIES SELLER IN WRITING
WITHIN TWELVE (12) MONTHS FROM THE CLOSING DATE OF SUCH BREACH OR INACCURACY AND
BUYER'S DAMAGES SUFFERED IN CONNECTION THEREWITH, AND (II) SELLER SHALL IN NO
EVENT BE RESPONSIBLE FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM
SUCH INACCURACY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY