obligations under this Agreement,
the Deposit shall be returned to Purchaser promptly following Purchaser's
compliance with its obligations under Section 5.3(c) and the parties shall have
no further obligation to each other except for those obligations that expressly
survive the termination of this Agreement.
33
Section 10.2
Purchaser's Default. If the sale contemplated hereby is not
consummated because of a default by Purchaser after Seller has performed or
tendered performance of all of its obligations in accordance with this
Agreement, then: (a) this Agreement shall terminate; (b) the Deposit shall be
paid to and retained by Seller as liquidated damages; and (c) except for those
obligations that expressly survive the termination of this Agreement, Seller and
Purchaser shall have no further obligations to each other. THE PARTIES HERETO,
BEFORE ENTERING INTO THIS AGREEMENT, HAVE BEEN CONCERNED WITH THE FACT THAT
SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT PURCHASER
SHOULD FAIL TO PURCHASE THE PROPERTY SUBJECT TO AND IN ACCORDING TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT. PURCHASER AND SELLER ACKNOWLEDGE THAT THE
DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THIS AGREEMENT BY PURCHASER WOULD
BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT
REPRESENTS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT
WOULD BE SUFFERED BY SELLER IF THE TRANSACTION SHOULD FAIL TO CLOSE AND THAT
SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE EFFECTIVE
DATE AND UNDER THE CIRCUMSTANCES THAT SELLER AND PURCHASER REASONABLY ANTICIPATE
WOULD EXIST AT THE TIME OF SUCH BREACH. THE PARTIES, HAVING MADE A DILIGENT
ENDEAVOR TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES WHICH SELLER WOULD SUFFER
IN THE EVENT OF PURCHASER'S FAILURE TO PURCHASE THE PROPERTY SUBJECT TO AND IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, HEREBY AGREE THAT
THE REASONABLE ESTIMATE OF SAID DAMAGES IS THE SUM EQUAL TO THE AMOUNT OF THE
DEPOSIT. THEREFORE, IN THE EVENT THAT THE SALE CONTEMPLATED HEREBY SHALL FAIL TO
CLOSE FOR ANY REASON OTHER THAN SELLER'S DEFAULT HEREUNDER OR THE FAILURE OF ANY
CONDITION PRECEDENT IN FAVOR OF PURCHASER EXPRESSLY SET FORTH IN THIS AGREEMENT,
SELLER SHALL BE ENTITLED TO AND SHALL RETAIN THE ENTIRE DEPOSIT AS LIQUIDATED
DAMAGES AND AS ITS SOLE REMEDY AT LAW OR IN EQUITY. THE AMOUNT OF THE LIQUIDATED
DAMAGES HAS BEEN ESTABLISHED BY THE PARTIES AS THE AMOUNT OF THE MONETARY
DAMAGES SELLER WILL SUFFER BASED UPON A FAILURE BY PURCHASER TO PURCHASE THE
PROPERTY AND SELLER SHALL BE ENTITLED TO RECOVER NO OTHER DAMAGES FROM PURCHASER
BASED UPON A FAILURE BY PURCHASER TO PURCHASE THE PROPERTY.
This Section 10.2 is intended only to liquidate and limit Seller's right to
damages arising due to Purchaser's failure to purchase the Property in
accordance with the terms of this Agreement and shall not limit the other
obligations of Purchaser under this Agreement.
34
Section 10.3
Seller's Default. If Purchaser shall have performed or tendered
performance of all of its material obligations under this