AGREE THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY
DIFFICULT TO FIX THE ACTUAL DAMAGES SUFFERED BY SELLER AS A RESULT OF
PURCHASER'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. PURCHASER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT
SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF SELLER FOR PURCHASER'S FAILURE TO
PURCHASE THE PROPERTY IN BREACH OF THIS AGREEMENT. NOTHING CONTAINED IN THE
FOREGOING SHALL SERVE TO WAIVE OR OTHERWISE LIMIT (A) SELLER'S REMEDIES OR
DAMAGES FOR POST-CLOSING CLAIMS OF SELLER AGAINST PURCHASER WITH RESPECT TO ANY
OBLIGATIONS OF PURCHASER THAT, BY THE TERMS OF THIS AGREEMENT, SURVIVE THE
CLOSING, INCLUDING BUT NOT LIMITED TO PURCHASER'S OBLIGATIONS IN REGARD TO
INDEMNIFICATION UNDER Section 14.03, OR (B) SELLER'S RIGHTS TO OBTAIN FROM
PURCHASER ALL COSTS AND EXPENSES OF ENFORCING THIS LIQUIDATED DAMAGES PROVISION,
INCLUDING LEGAL COSTS. THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO
INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGE PROVISIONS CONTAINED IN THIS
SECTION.
ACCEPTED AND AGREED TO:
/s/
/s/
SELLER
PURCHASER
(b) PURCHASERS REMEDIES. IN THE EVENT THE CLOSING FAILS TO OCCUR BECAUSE OF
SELLER'S FAILURE TO PERFORM SELLER'S OBLIGATIONS UNDER THIS AGREEMENT, PURCHASER
SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT BY WRITTEN NOTICE SENT TO THE
SELLER, IN WHICH EVENT THE EARNEST MONEY DEPOSIT SHALL BE PROMPTLY RETURNED TO
PURCHASER. IN ADDITION, PURCHASER SHALL
28
HAVE ALL RIGHTS AND REMEDIES AGAINST SELLER PROVIDED AT LAW AND IN EQUITY
INCLUDING (BUT NOT LIMITED TO) THE RIGHT TO REQUIRE THAT SELLER SPECIFICALLY
PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. THE PARTIES HAVE SET FORTH THEIR
INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE REMEDIES PROVISIONS
CONTAINED IN THIS SECTION.
ACCEPTED AND AGREED TO:
/s/
/s/
SELLER
PURCHASER
ARTICLE X
TERMINATION
Section 10.01 Termination. This Agreement may be terminated and the
transactions contemplated hereby abandoned at any time prior to Closing as
follows:
(a) by written agreement of the Seller and the Purchaser;
(b) by either the Purchaser or the Seller if the Closing Date has not
occurred by July 29, 2011 (the "Termination Date")); provided, that the right to
terminate this Agreement under this Section 10.01(b) shall not be available to
any party whose failure to fulfill any obligation hereunder has been the cause
of, or resulted in, the failure of the Closing Date to occur on or before the
Termination Date and such failure constitutes a breach of this Agreement;
(c) by the Purchaser if it is not in material breach of its obligations
under this Agreement and there has been a breach of any representation,
warranty, covenant or agreement contained in this Agreement on the part of the
Seller provided, that if such breach is curable by the Seller within fifteen
(15) days following the Seller's receipt of written notice