THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER AFTER THE CLOSING
DELIVERY DATE AND BEFORE THE CLOSING, IN ADDITION TO THE EARNEST MONEY DEPOSIT,
BUYER SHALL ALSO PAY SELLER AN AMOUNT EQUAL TO THE THIRD PARTY OUT OF POCKET
COSTS INCURRED BY SELLER IN CONNECTION WITH THE DEFEASANCE OF SELLER'S CURRENT
LOAN UP TO A MAXIMUM AGGREGATE AMOUNT OF ONE HUNDRED TWENTY-FIVE THOUSAND
DOLLARS ($125,000.00) AND SUCH AMOUNT TOGETHER WITH THE EARNEST MONEY DEPOSIT
SHALL BE A REASONABLE AMOUNT OF LIQUIDATED DAMAGES, AND SELLER SHALL BE ENTITLED
TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO
ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM
SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THE
PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU
OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S
FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS
SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY THEREFOR.
NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 8.1 SHALL NOT
APPLY TO ANY INDEMNITY OR ATTORNEYS' FEE PROVISIONS UNDER THIS AGREEMENT.
Buyer's Initials /s/ DW
Seller's Initials /s/ GKH
8.2
SELLER'S DEFAULT. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH
UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY BUYER IN THE EVENT THAT SELLER,
WITHOUT LEGAL EXCUSE, BREACHES THIS AGREEMENT AND FAILS TO SELL THE PROPERTY TO
BUYER IN ACCORDANCE WITH THE TERMS HEREOF. BOTH PARTIES ACKNOWLEDGE AND AGREE
THAT DAMAGES BUYER WOULD SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY
DIFFICULT AND
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IMPRACTICAL TO ASCERTAIN. ACCORDINGLY, THE PARTIES HEREBY AGREE THAT BUYER'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 PURSUANT
TO SECTION 7.4 HEREOF; PROVIDED, HOWEVER, IF SUCH DEFAULT IS A RESULT OF AN
INTENTIONAL ACT OR WILLFUL MISCONDUCT OF SELLER WHICH RENDERS THE REMEDY OF
SPECIFIC PERFORMANCE UNAVAILABLE, BUYER MAY, IN ADDITION TO THE REMEDY SET FORTH
IN (II) BELOW, SEEK DAMAGES FROM SELLER IN THE AMOUNT OF BUYER'S OUT OF POCKET
EXPENSES INCURRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED IN THIS
AGREEMENT AND THE OTHER PURCHASE AGREEMENTS UP TO A MAXIMUM AGGREGATE AMOUNT OF
$300,000, OR (II) TERMINATE THIS AGREEMENT AND RECEIVE A REFUND OF THE EARNEST
MONEY DEPOSIT, PLUS ANY INTEREST THEREON, LESS THE INDEPENDENT CONSIDERATION.
BUYER SHALL HAVE NO OTHER REMEDY IN THE EVENT OF SELLER'S BREACH OF THIS
AGREEMENT PRIOR TO THE CLOSING AND BUYER HEREBY WAIVES ANY RIGHTS IT MAY
OTHERWISE HAVE TO SEEK OTHER REMEDIES. AS A CONDITION PRECEDENT TO BUYER
EXERCISING ANY RIGHT IT MAY HAVE TO BRING AN ACTION FOR SPECIFIC PERFORMANCE
HEREUNDER, BUYER MUST COMMENCE SUCH AN ACTION WITHIN NINETY (90) DAYS AFTER THE
OCCURRENCE OF SELLER'S DEFAULT. BUYER AGREES THAT ITS FAILURE