Section 16(a), this
Agreement shall apply to, inure to the benefit of and be binding upon and
enforceable against the parties hereto and their respective successors and
assigns.
17. Remedies.
(a) (i) IN THE EVENT THAT SELLER SHALL FAIL TO CONSUMMATE THIS AGREEMENT AND
SUCH FAILURE IS NOT A RESULT OF PURCHASER'S DEFAULT, OR IN THE CASE WHERE SELLER
SHALL OTHERWISE BREACH ANY MATERIAL COVENANT, AGREEMENT OR REPRESENTATION OF
THIS AGREEMENT PRIOR TO CLOSING, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, PURCHASER MAY, AS ITS SOLE AND EXCLUSIVE REMEDY BE ENTITLED TO SEEK,
AT ITS ELECTION, EITHER: (A) THE REMEDY OF SPECIFIC PERFORMANCE, OR (B) A
TERMINATION OF THIS AGREEMENT AND A REFUND OF THE EARNEST MONEY AND RECOVERY OF
PURCHASER'S REASONABLE AND ACTUAL OUT-OF-POCKET COSTS (DOCUMENTED BY PAID
INVOICES TO THIRD PARTIES) INCURRED WITH RESPECT TO THIS AGREEMENT, THE
TRANSACTION DESCRIBED HEREIN AND THE DUE DILIGENCE PERFORMED IN CONNECTION
HEREWITH, NOT TO EXCEED $100,000.00 IN THE AGGREGATE, FOR ALL RECOURSE OF
PURCHASER UNDER THIS AGREEMENT, OR (C) WAIVE SAID FAILURE OR BREACH AND PROCEED
TO CLOSING WITHOUT ANY REDUCTION IN THE
25
PURCHASE PRICE. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY
PUNITIVE, SPECULATIVE OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL PURCHASER BE
ENTITLED TO RECORD A LIS PENDENS OR NOTICE OF PENDENCY OF ACTION AGAINST THE
PROPERTY FOR ANY REASON WHATSOEVER.
(ii) PURCHASER SHALL (A) NOTIFY SELLER OF ITS ELECTION TO SEEK THE REMEDY OF
SPECIFIC PERFORMANCE ON OR BEFORE THE DATE WHICH IS SIXTY (60) DAYS AFTER THE
DATE OF SELLER'S DEFAULT AND (B) INSTITUTE PROCEEDINGS SEEKING SUCH REMEDY ON OR
BEFORE THE DATE WHICH IS FORTY-FIVE (45) DAYS AFTER THE DATE OF PURCHASER'S
NOTICE.
(iii) PURCHASER SHALL BE DEEMED TO HAVE WAIVED ITS ELECTION TO SEEK THE REMEDY
OF SPECIFIC PERFORMANCE IF PURCHASER DOES NOT (x) NOTIFY SELLER OF SUCH ELECTION
AS PROVIDED IN SECTION 17(a)(ii) (A) HEREINABOVE , OR (y) INSTITUTE PROCEEDINGS,
SEEKING SUCH REMEDY AS PROVIDED IN SECTION 17(a)(ii)(B) HEREINABOVE.
(b) IN THE EVENT THAT PURCHASER SHOULD FAIL TO CONSUMMATE THIS AGREEMENT FOR ANY
REASON, EXCEPT SELLER'S DEFAULT, LITIGATION WHICH PROHIBITS SELLER FROM SELLING
THE PROPERTY TO PURCHASER, OR THE TERMINATION OF THIS AGREEMENT BY PURCHASER
PURSUANT TO A RIGHT TO DO SO UNDER THE TERMS AND PROVISIONS HEREOF, THEN SELLER,
AS ITS SOLE AND EXCLUSIVE REMEDY MAY TERMINATE THIS AGREEMENT BY NOTIFYING
PURCHASER THEREOF AND RECEIVE OR RETAIN THE EARNEST MONEY AS LIQUIDATED DAMAGES,
PROVIDED THAT THIS PROVISION SHALL NOT LIMIT SELLER'S RIGHTS TO RECEIVE
REIMBURSEMENT FOR ATTORNEYS FEES AND TO PURSUE AND RECOVER ON A CLAIM WITH
RESPECT TO ANY SURVIVING OBLIGATIONS. THE PARTIES AGREE THAT SELLER WILL SUFFER
DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT ON ITS OBLIGATIONS. ALTHOUGH THE
AMOUNT OF SUCH DAMAGES IS DIFFICULT OR IMPOSSIBLE TO DETERMINE, THE PARTIES
AGREE THAT THE AMOUNT OF THE EARNEST MONEY IS A REASONABLE ESTIMATE OF SELLER'S
LOSS IN THE EVENT OF PURCHASER'S DEFAULT. THUS, SELLER SHALL ACCEPT AND RETAIN
THE EARNEST MONEY AS LIQUIDATED DAMAGES BUT