BUYER WISHES TO HAVE A
LIMITATION PLACED UPON THE POTENTIAL LIABILITY OF BUYER TO SELLERS IN THE EVENT
THE CLOSING FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND WISHES TO INDUCE SELLERS
TO WAIVE OTHER REMEDIES WHICH SELLERS MAY HAVE IN THE EVENT OF SUCH A BUYER
DEFAULT.
BUYER AND SELLERS, AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND AGREE
THAT THE AMOUNT OF THE DEPOSIT PLUS THE AMOUNT OF ANY DEPOSIT THAT BUYER IS
OBLIGATED TO MAKE, BUT HAS NOT MADE, REPRESENTS A REASONABLE ESTIMATE OF THE
DAMAGES WHICH SELLERS WILL SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT.
BUYER
AND SELLERS HEREBY AGREE THAT SELLERS MAY, IN THE EVENT THE CLOSING FAILS TO
OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO
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BUYER'S OBLIGATIONS TO CLOSE HAVING BEEN SATISFIED OR WAIVED), AS ITS SOLE AND
EXCLUSIVE REMEDY TERMINATE THIS AGREEMENT AND CANCEL THE ESCROW BY WRITTEN
NOTICE TO BUYER AND ESCROW HOLDER, WHEREUPON ESCROW HOLDER SHALL DELIVER THE
DEPOSIT TO SELLERS AND SELLERS SHALL RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES
FOR SUCH DEFAULT AND SELLERS WAIVE ALL OTHER REMEDIES EXCEPT THAT SELLERS DO NOT
WAIVE THE RIGHT TO ENFORCE A CLAIM AGAINST BUYER FOR THE AMOUNT OF ANY DEPOSIT
THAT SELLERS ARE, BY THE TERMS OF THIS AGREEMENT OBLIGATED TO MAKE, BUT HAS NOT
MADE.
SUCH RETENTION OF THE DEPOSIT BY SELLERS AND RIGHT TO ENFORCE SELLER'S
OBLIGATION TO MAKE ANY ADDITIONAL DEPOSIT ARE INTENDED TO CONSTITUTE LIQUIDATED
DAMAGES TO SELLERS AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR
PENALTY.
FOLLOWING TERMINATION OF THIS AGREEMENT, CANCELLATION OF THE ESCROW
AND THE DELIVERY TO AND RETENTION OF THE DEPOSIT BY SELLERS AS LIQUIDATED
DAMAGES PURSUANT TO THIS SECTION 14(a), ALL OF THE RIGHTS AND OBLIGATIONS OF
BUYER AND SELLERS UNDER THIS AGREEMENT SHALL BE TERMINATED SUBJECT TO SURVIVAL
OF SUCH OBLIGATIONS HEREUNDER AS SURVIVE SUCH TERMINATION.
(b)
Buyer's Remedies.
In the event of a default by Sellers under this
Agreement, Buyer may, at its option and as its sole and exclusive remedy, either
(i) terminate this Agreement in which case the Deposit shall be immediately
returned to Buyer and Buyer shall be entitled to reimbursement from Sellers for
all of Buyer's out-of-pocket third party costs and expenses incurred in
connection with this Agreement and Due Diligence Review not to exceed $75,000.00
in the aggregate, or (ii) specifically enforce the terms and conditions of this
Agreement (any lawsuit for specific performance must be filed within forty-five
(45) days of the claimed breach by a Seller or shall be deemed to be irrevocably
waived by Buyer).
(c)
Aggregate Liability.
Without limiting Buyer's specific
performance remedy under Section 14(b), Sellers' aggregate liability to Buyer
under this Agreement after the Closing as a result of a breach of any
representation or warranty or any other covenant or indemnity made by any Seller
shall in no event collectively exceed One Million and 00/100 Dollars
($1,000,000.00), in the aggregate.
Notwithstanding the foregoing, the
limitation of Sellers' liability set forth in