result in the material breach of any terms, conditions or provisions of, or
constitute a default under, any bond, note, or other evidence of indebtedness or
any contract, indenture, mortgage, deed of trust, loan, partnership agreement,
lease or other agreements or instruments to which Buyer is a party.
5.8.3
Buyer's acquisition of the Property is not conditioned upon
obtaining any financing.
23
ARTICLE 6
REMEDIES
6.1
Liquidated Damages; Seller's Remedies. IN THE EVENT BUYER FAILS
TO PERFORM ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT FOR ANY REASON (UNLESS
EXCUSED AND AS TO BUYER'S ALLEGED DEFAULTS, ONLY AFTER NOTICE AND OPPORTUNITY TO
CURE, IF ANY, HAS EXPIRED), SELLER MAY TERMINATE THIS AGREEMENT UPON WRITTEN
NOTICE TO BUYER. BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER AS A RESULT
THEREOF. THEREFORE, BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE
OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER
BREACHES THIS AGREEMENT IS AND SHALL BE, AS SELLER'S SOLE AND EXCLUSIVE REMEDY
(WHETHER AT LAW OR IN EQUITY), AND AS THE FULL, AGREED AND LIQUIDATED DAMAGES
FOR SUCH BREACH, AN AMOUNT EQUAL TO THE DEPOSIT. NOTWITHSTANDING THE FOREGOING,
THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO: (I) RECEIVE
REIMBURSEMENT FOR OR RECOVER DAMAGES IN CONNECTION WITH BUYER'S INDEMNITY OF
SELLER AND/OR BREACH OF BUYER'S OBLIGATIONS WHICH ARE SPECIFICALLY STATED TO
SURVIVE THE TERMINATION OF THIS TRANSACTION; (II) SEEK A CLAIM FOR PAYMENT OF
THE SECOND DEPOSIT, IF BUYER'S BREACH WAS ITS FAILURE TO MAKE THE SECOND
DEPOSIT; (III) RECOVER ITS REASONABLE ATTORNEYS' FEES AND COURT COSTS PURSUANT
TO THIS AGREEMENT; AND/OR (IV) PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR
IN EQUITY IN THE EVENT THAT FOLLOWING ANY PROPER AND LAWFUL TERMINATION OF THIS
AGREEMENT, ANY OF THE BUYER RELATED ENTITIES WRONGFULLY ENCUMBERS THE PROPERTY
IN A MANNER THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR,
INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY (AND BUYER FAILS TO REMOVE
SUCH TITLE ENCUMBRANCE WITHIN FIVE (5) DAYS AFTER SELLER'S WRITTEN NOTICE). THE
PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED
AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO
SELLER. SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS SECTION.
6.2
Buyer's Remedies. In the event Seller fails to perform its
obligations pursuant to this Agreement for any reason (unless excused and as to
Seller's alleged defaults, only after notice and opportunity to cure, if any,
has expired), then Buyer shall elect, as its sole remedy, either to:
(i) terminate this Agreement by giving Seller written notice of such election on
or prior to the Closing Date, in which case (a) the entire Deposit shall be
promptly delivered to Buyer, and (b) Seller shall reimburse to Buyer its actual
out-of-pocket third party costs and expenses incurred in connection with its
contemplated acquisition of the Property (including, but