THIS AGREEMENT, or (2)
enforce specific performance of SELLER'S OBLIGATION TO PERFORM UNDER THIS
AGREEMENT AND CONVEY THE PROPERTY TO BUYER IN ACCORDANCE WITH the TERMS OF this
Agreement; provided, however, buyer shall only be entitled to SPECIFIC
performance if buyer files suit for specific performance within thirty (30) days
after the date scheduled for CLOSING. if buyer fails to file suit for specific
performance in said 30-day period, buyer shall be deemed to have elected to
terminate this AGREEMENT PURSUANT to clause (1) above. the remedy selected (or
deemed selected) by buyer shall be buyer's sole and exclusive remedy AS A RESULT
OF SUCH DEFAULT, and in no event, INCLUDING, UNDER EITHER (1) OR (2) ABOVE,
SHALL SELLER BE LIABLE TO BUYER FOR ANY CONSEQUENTIAL, ACTUAL, INDIRECT,
PUNITIVE, TREBLE, EXEMPLARY, SPECULATIVE OR ANY OTHER DAMAGES. Buyer shall not
have any other rights or remedies hereunder as a result of any default by Seller
prior to Closing, and Buyer hereby waives any other such remedy as a result of a
default hereunder by Seller. THESE LIMITATIONS ON REMEDIES ARE A MATERIAL
INDUCEMENT FOR SELLER TO ENTER INTO THIS AGREEMENT AND WITHOUT WHICH SELLER
WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. IF THE SALE IS NOT CONSUMMATED DUE
TO ANY DEFAULT BY BUYER HEREUNDER, THEN SELLER SHALL, AS IT SOLE AND EXCLUSIVE
REMEDY, RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. SELLER HEREBY SPECIFICALLY
WAIVES ANY OTHER REMEDIES THAT MAY BE AVAILABLE TO SELLER AS A RESULT OF SUCH
DEFAULT. ANYTHING CONTAINED HEREIN TO THE CONTRARY NOTWITHSTANDING, IT IS AGREED
THAT, SHOULD BUYER DEFAULT AFTER THE EXPIRATION OF THE CONTINGENCY PERIOD,
BUYER'S OBLIGATIONS SHALL INCLUDE DELIVERY OF THE ENTIRE DEPOSIT, INCLUDING THE
ADDITIONAL DEPOSIT, EVEN IF THE ADDITIONAL DEPOSIT SHALL NOT TIMELY HAVE BEEN
DELIVERED TO THE TITLE COMPANY, AND SELLER SHALL BE ENTITLED TO LIQUIDATED
DAMAGES IN THE AMOUNT OF THE INITIAL DEPOSIT, THE ADDITIONAL DEPOSIT AND ALL
INTEREST EARNED THEREON. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES,
IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER'S DEFAULT PRIOR
TO CLOSING, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER
NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A
REASONABLE AND GOOD FAITH ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN
SUCH EVENT AND IS NOT A PENALTY. the remedy AVAILABLE TO SELLER UNDER THIS
SECTION 1.2(b)(3) shall constitute SELLER'S sole and exclusive remedy, and in no
event SHALL BUYER BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, ACTUAL, INDIRECT,
PUNITIVE, TREBLE, EXEMPLARY, SPECULATIVE OR ANY OTHER DAMAGES. SELLER shall not
have any other rights or remedies hereunder as a result of any default by BUYER
prior to Closing, and SELLER hereby waives any other such remedy as a result of
a default hereunder by BUYER.
THE FOREGOING IS NOT INTENDED TO LIMIT BUYER'S AND SELLER'S OBLIGATIONS UNDER
SECTIONS 6.1, 9.3, 9.5 AND 9.9.
4
(5)
The balance of the Purchase Price,