AGREEMENT, IS MATERIAL TO SELLER. BUYER
ALSO ACKNOWLEDGES THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IF SUCH
TRANSACTION IS NOT SO CONSUMMATED DUE TO BUYER'S DEFAULT UNDER THIS AGREEMENT.
BUYER FURTHER ACKNOWLEDGES THAT, AS OF THE DATE OF THIS AGREEMENT, SELLER'S
DAMAGES WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO COMPUTE IN LIGHT OF THE
UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE
FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER
FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY. IN
LIGHT OF THE FOREGOING AND ALL OF THE OTHER FACTS AND CIRCUMSTANCES SURROUNDING
THIS TRANSACTION, AND FOLLOWING NEGOTIATIONS BETWEEN THE PARTIES, BUYER AND
SELLER AGREE THAT THE AMOUNT OF THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF
THE DAMAGES WHICH SELLER WOULD SUFFER BY REASON OF BUYER'S DEFAULT HEREUNDER.
ACCORDINGLY, BUYER AND SELLER HEREBY AGREE THAT, IN THE EVENT OF SUCH DEFAULT BY
BUYER UNDER THIS AGREEMENT, SELLER MAY TERMINATE THIS AGREEMENT BY GIVING NOTICE
TO BUYER AND TITLE COMPANY. IN THE EVENT OF SUCH TERMINATION, SELLER SHALL
RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES AND SELLER'S SOLE REMEDY IN LIEU OF ANY
OTHER CLAIM SELLER MAY HAVE AT LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION,
SPECIFIC PERFORMANCE) ARISING BY REASON OF BUYER'S DEFAULT. THE PARTIES HAVE
INITIALED THIS SECTION 3.2 TO ESTABLISH THEIR INTENT TO SO LIQUIDATE DAMAGES.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS SECTION 3.2 SHALL BE
DEEMED TO LIMIT BUYER'S OBLIGATION TO PERFORM THE "CONTINUING OBLIGATIONS"
DEFINED IN SECTION 4.5 BELOW.
Seller's
Buyer's
Initials:
Initials:
3.3 Default by Seller. IF THE CLOSING FAILS TO OCCUR BECAUSE OF A DEFAULT
BY SELLER UNDER THIS AGREEMENT, THEN BUYER MAY ELECT, AS ITS SOLE AND EXCLUSIVE
REMEDY, ONE OF THE FOLLOWING: (a) TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO
SELLER, IN WHICH CASE THE DEPOSIT AND ALL INTEREST ACCRUED THEREON SHALL BE
RETURNED TO BUYER, AND BUYER
FINAL AGREEMENT
3
SHALL RECOVER FROM SELLER AN ADDITIONAL SUM EQUAL TO ALL ACTUAL, OUT-OF-POCKET
COSTS AND EXPENSES INCURRED BY BUYER IN CONNECTION WITH THIS AGREEMENT, THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT, THE ADDITIONAL TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY DOCUMENTS CONTEMPLATED TO BE ENTERED INTO
IN CONNECTION WITH THIS AGREEMENT (INCLUDING EXHIBITS HERETO), AND THE PROJECT
UP TO A MAXIMUM AMOUNT OF TWO HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS
($250,000.00); OR (b) BRING AN ACTION FOR SPECIFIC PERFORMANCE OF THIS
AGREEMENT, BUT ONLY UNDER AND SUBJECT TO THE FOLLOWING CONDITIONS AND
CIRCUMSTANCES: (i) BUYER SHALL BE READY, WILLING AND ABLE TO COMPLETE THE
CLOSING IN ACCORDANCE WITH THIS AGREEMENT ON THE CLOSING DATE; AND (ii) THE
ACTION FOR SPECIFIC PERFORMANCE SHALL BE COMMENCED NOT LATER THAN THIRTY
(30) DAYS AFTER BUYER HAS ACTUAL KNOWLEDGE OF SELLER'S DEFAULT, EXCEPT IF SUCH
CONTRACTUAL LIMITATION ON THE TIME PERIOD TO FILE SUIT IS PROHIBITED OR LIMITED
BY LAW, THE TIME PERIOD SHALL BE EXTENDED TO THE MINIMUM LIMITATION PERIOD
ALLOWED BY LAW. BUYER WAIVES ANY RIGHT TO PURSUE ANY OTHER REMEDY AT LAW