IF BUYER DEFAULTS IN THE OBSERVANCE OR PERFORMANCE OF ITS
COVENANTS AND OBLIGATIONS HEREUNDER PRIOR TO CLOSING, AND SUCH DEFAULT CONTINUES
FOR FIVE (5) BUSINESS DAYS AFTER THE DATE OF RECEIPT OF WRITTEN NOTICE FROM
SELLER DEMANDING CURE OF SUCH DEFAULT, SELLER SHALL BE ENTITLED, AS ITS SOLE AND
EXCLUSIVE REMEDY HEREUNDER, TO TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO
BUYER OF SUCH TERMINATION AND TO RECEIVE PAYMENT OF THE DEPOSIT AS FULL
LIQUIDATED DAMAGES FOR SUCH DEFAULT OF BUYER, THE PARTIES HERETO ACKNOWLEDGING
THE DIFFICULTY OF ASCERTAINING THE ACTUAL DAMAGES IN THE EVENT OF SUCH A
DEFAULT, THAT IT IS IMPOSSIBLE MORE PRECISELY TO ESTIMATE THE DAMAGES TO BE
SUFFERED BY SELLER UPON BUYER'S DEFAULT, THAT SUCH FORFEITURE OF THE DEPOSIT IS
INTENDED NOT AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES AND THAT SUCH AMOUNT
CONSTITUTES A REASONABLE GOOD FAITH ESTIMATE OF THE POTENTIAL
- 23 -
Purchase Agreement
DAMAGES ARISING THEREFROM, IT BEING OTHERWISE DIFFICULT OR IMPOSSIBLE TO
ESTIMATE SELLER'S ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IN THE EVENT
OF DEFAULT BY BUYER. EXCEPT WITH RESPECT TO ANY RIGHT, OBLIGATION OR LIABILITY
WHICH SURVIVES CLOSING OR TERMINATION OF THIS AGREEMENT, INCLUDING ANY
INDEMNIFICATION PROVISIONS SET FORTH IN THIS AGREEMENT, SELLER'S RIGHT TO
TERMINATE THIS AGREEMENT AND RECEIVE PAYMENT OF THE DEPOSIT AS FULL LIQUIDATED
DAMAGES, ARE SELLER'S SOLE AND EXCLUSIVE REMEDIES IN THE EVENT OF DEFAULT
HEREUNDER BY BUYER, AND SELLER HEREBY WAIVES, RELINQUISHES AND RELEASES ANY AND
ALL OTHER RIGHTS AND REMEDIES (EXCEPT ANY THAT SURVIVE CLOSING OR TERMINATION
PURSUANT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT), INCLUDING, BUT NOT
LIMITED TO: (1) ANY RIGHT TO SUE BUYER FOR DAMAGES OR TO PROVE THAT SELLER'S
ACTUAL DAMAGES EXCEED THE DEPOSIT WHICH IS HEREBY PROVIDED SELLER AS FULL
LIQUIDATED DAMAGES, (2) ANY RIGHT TO SUE BUYER FOR SPECIFIC PERFORMANCE, OR
(3) ANY OTHER RIGHT OR REMEDY WHICH SELLER MAY OTHERWISE HAVE AGAINST BUYER,
EITHER AT LAW, OR EQUITY OR OTHERWISE.
Buyer's Initials
Seller's Initials
12.2 Seller Default. If Seller defaults in the observance or performance of its
covenants and obligations hereunder prior to Closing, or if Seller breaches any
of its representations and warranties under this Agreement, and such default
continues for the greater of five (5) Business Days after the date of receipt of
written notice from Buyer demanding cure of such default, or the expiration of
other applicable cure periods set forth in this Agreement, then Buyer shall be
entitled either, at Buyer's option, (i) without waiving the right to elect the
option to Terminate this Agreement, to bring an action against Seller for
specific performance of this Agreement, but only if such suit is filed within
sixty (60) days after the occurrence of Seller's alleged default, or (ii) to
Terminate this Agreement by the delivery to Seller of notice of such termination
and in such event Buyer shall be entitled to the return the Deposit and, in the
case of a material default by Seller that is willful and/or fraudulent in