PERFORMABLE AND OWING IN ADDITION TO
ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT
SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES
(INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN
THE EVENT BUYER DISPUTES SELLER'S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF
THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE
PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER
AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY
DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A
DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE
AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF
SELLER'S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY
SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED
THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT
LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM
BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF
31
THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT.
INITIALS:
___________/___________ [Initials of Buyer and Seller]
14.2 Seller's Default. SUBJECT TO ARTICLE XVII, IF BUYER TENDERS
PERFORMANCE OF ALL OF ITS OBLIGATIONS IN ACCORDANCE WITH THIS AGREEMENT AND
SELLER REFUSES OR FAILS TO CONVEY THE PROPERTY AS HEREIN PROVIDED FOR ANY REASON
OTHER THAN (A) A DEFAULT BY BUYER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE
PERIOD FOLLOWING WRITTEN NOTICE FROM BUYER, (B) THE EXISTENCE OF A PENDING
DEFAULT, (C) THE FAILURE OF A CONDITION TO SELLER'S OBLIGATION TO CLOSE THIS
TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) ANY OTHER PROVISION OF
THIS AGREEMENT THAT EXPRESSLY PERMITS SELLER TO TERMINATE THIS AGREEMENT OR
OTHERWISE RELIEVES SELLER OF THE OBLIGATION TO CONVEY THE PROPERTY, BUYER SHALL
ELECT AS ITS SOLE REMEDY HEREUNDER EITHER TO TERMINATE THIS AGREEMENT AND
RECOVER THE DEPOSIT, IN WHICH CASE BUYER SHALL ALSO BE ENTITLED TO RECOVER ITS
ACTUAL OUT-OF-POCKET EXPENSES IN CONNECTION WITH THE PROPOSED ACQUISITION OF THE
PROPERTY (INCLUDING, WITHOUT LIMITATION, DUE DILIGENCE AND NEGOTIATIONS WITH
SELLER AND LENDERS, IF APPLICABLE), NOT TO EXCEED THE SUM OF ONE HUNDRED
THOUSAND DOLLARS ($100,000), OR TO ENFORCE, SELLER'S OBLIGATIONS UNDER THIS
AGREEMENT TO CONVEY THE PROPERTY BY AN ACTION FOR SPECIFIC PERFORMANCE, PROVIDED
THAT NO SUCH ACTION IN SPECIFIC PERFORMANCE SHALL SEEK TO REQUIRE SELLER TO DO
ANY OF THE FOLLOWING: (A) CHANGE THE CONDITION OF THE PROPERTY OR RESTORE THE
SAME AFTER ANY FIRE OR OTHER CASUALTY; (B) EXPEND MONEY OR POST A BOND TO REMOVE
A TITLE ENCUMBRANCE OR DEFECT (OTHER THAN A SELLER'S MONETARY LIEN) OR CORRECT
ANY MATTER SHOWN ON A SURVEY OF THE PROPERTY; OR (C) SECURE ANY PERMIT,
APPROVAL, OR CONSENT WITH RESPECT TO THE PROPERTY OR SELLER'S CONVEYANCE OF THE
PROPERTY.
INITIALS: ___________/___________ [Initials of Buyer and Seller]
14.3