delivered to Seller the documents referred to in Sections 9.2.3(iii) and
9.2.4(ii); and (iii) duly execute and acknowledge, if appropriate, such other
documents as may be reasonably required by the Escrow Agent or Title Company.
9.4 Possession.
Purchaser shall be entitled to possession of the Property upon conclusion of the
Closing.
10. DEFAULT; FAILURE OF CONDITION.
10.1 Purchaser Default.
IF THE CLOSING FAILS TO OCCUR DUE TO PURCHASER'S DEFAULT UNDER THIS AGREEMENT,
SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO RETAIN THE
DEPOSIT AS "LIQUIDATED DAMAGES". SELLER AND PURCHASER AGREE THAT BASED UPON THE
CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE EXTREMELY DIFFICULT
AND IMPRACTICAL TO ASCERTAIN SELLER'S DAMAGES BY REASON OF SUCH DEFAULT.
PURCHASER AND SELLER WISH TO AVOID THE COSTS AND LENGTHY DELAYS WHICH WOULD
RESULT IF SELLER FILED A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS
AGREEMENT. THEREFORE, IF CLOSING FAILS TO OCCUR DUE TO A DEFAULT UNDER THIS
AGREEMENT BY PURCHASER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, THE DEPOSIT SHALL
BE RELEASED TO SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED
OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE OBLIGATIONS
WHICH EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT AS PROVIDED HEREIN (THE
"SURVIVING OBLIGATIONS") AND THE PARTIES RIGHTS UNDER SECTION 11.8. SUCH
RETENTION OF THE DEPOSIT BY SELLER SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH
SELLER MIGHT BE ENTITLED BY VIRTUE OF PURCHASER'S FAILURE TO PURCHASE THE
PROPERTY AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY FOR PURCHASER'S BREACH
OF THIS AGREEMENT. SUCH RETENTION OF THE DEPOSIT BY SELLER IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND SHALL NOT BE DEEMED TO CONSTITUTE A
FORFEITURE OR PENALTY. OTHER THAN THE SPECIFIC REMEDY EXPRESSLY SET FORTH IN
THIS SECTION 10.1, SELLER HEREBY WAIVES ANY AND ALL RIGHT AND REMEDY, AT LAW OR
IN EQUITY, TO WHICH SELLER MAY OTHERWISE HAVE BEEN ENTITLED BY REASON OF
PURCHASER'S DEFAULT, INCLUDING ANY RIGHT IN EQUITY TO SEEK SPECIFIC PERFORMANCE
OF THIS AGREEMENT BY PURCHASER AND ANY RIGHT AT LAW TO SEEK DAMAGES FROM
PURCHASER.
Seller's initials
Purchaser's initials
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10.2 Seller Default.
THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF
DAMAGES TO BE SUFFERED BY PURCHASER IN THE EVENT THAT PURCHASER IS NOT IN
MATERIAL DEFAULT HEREUNDER AND SELLER BREACHES THIS AGREEMENT AND FAILS TO SELL
THE PROPERTY TO PURCHASER IN ACCORDANCE WITH THE TERMS HEREOF. BOTH PARTIES
ACKNOWLEDGE AND AGREE THAT DAMAGES PURCHASER WOULD SUSTAIN AS A RESULT OF SUCH A
BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. ACCORDINGLY,
THE PARTIES HEREBY AGREE THAT PURCHASER'S SOLE AND EXCLUSIVE REMEDY IN SUCH CASE
SHALL BE TO EITHER: (I) COMMENCE AN ACTION FOR SPECIFIC PERFORMANCE UNDER THIS
AGREEMENT, BUT NOT FOR DAMAGES OF ANY KIND, AND RECOVER ITS ATTORNEYS FEES
INCURRED IN CONNECTION THEREWITH, OR (II) TERMINATE THIS AGREEMENT AND RECEIVE
BACK THE DEPOSIT AND SELLER SHALL REIMBURSE PURCHASER FOR PURCHASER'S ACTUAL
DOCUMENTED OUT OF POCKET EXPENSES