MONEY AND ALL OTHER DEPOSITS MADE BY
PURCHASER HEREUNDER (COLLECTIVELY, "DEPOSITS") EXCEEDS FIFTEEN PERCENT (15%) OF
THE PURCHASE PRICE, THEN SELLER SHALL REFUND TO PURCHASER THAT PORTION OF THE
DEPOSITS, IF ANY, WHICH REMAINS AFTER SUBTRACTING FROM THE DEPOSITS THE GREATER
OF (A) FIFTEEN PERCENT (15%) OF THE PURCHASE PRICE OR (B) THE AMOUNT OF ACTUAL
DAMAGES INCURRED BY SELLER AS A RESULT OF THE DEFAULT OF PURCHASER.
6.2
DEFAULT OF SELLER. IF SELLER FAILS TO PERFORM
ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT FOR ANY REASON EXCEPT FAILURE BY
PURCHASER TO PERFORM HEREUNDER OR THE PERMITTED TERMINATION HEREOF BY PURCHASER
OR SELLER IN ACCORDANCE WITH THE EXPRESS PROVISIONS HEREOF, AND IF SUCH FAILURE
CONTINUES FOR TWENTY (20) DAYS AFTER WRITTEN NOTICE TO SELLER, PURCHASER MAY
TERMINATE THIS AGREEMENT BY GIVING SELLER TIMELY WRITTEN NOTICE OF SUCH ELECTION
PRIOR TO OR AT CLOSING, IN WHICH EVENT PURCHASER SHALL BE ENTITLED TO EITHER
(A) RECEIVE THE RETURN OF THE EARNEST MONEY (TOGETHER WITH ALL INTEREST EARNED
THEREON), WHICH RETURN SHALL OPERATE TO TERMINATE THIS AGREEMENT AND RELEASE
SELLER FROM ANY AND ALL LIABILITY HEREUNDER, OR (B) ENFORCE SPECIFIC PERFORMANCE
OF SELLER'S OBLIGATION TO EXECUTE THE DOCUMENTS REQUIRED TO CONVEY THE PROPERTY
TO PURCHASER, IT BEING UNDERSTOOD AND AGREED THAT THE REMEDY OF SPECIFIC
PERFORMANCE SHALL NOT BE AVAILABLE TO ENFORCE ANY OTHER OBLIGATION OF SELLER
HEREUNDER. PURCHASER EXPRESSLY WAIVES ITS RIGHTS TO SEEK DAMAGES IN THE EVENT OF
SELLER'S DEFAULT HEREUNDER. PURCHASER SHALL BE DEEMED TO HAVE ELECTED TO
TERMINATE THIS AGREEMENT AND RECEIVE BACK THE EARNEST MONEY (TOGETHER WITH ALL
INTEREST EARNED THEREON) IF PURCHASER FAILS TO FILE SUIT FOR SPECIFIC
PERFORMANCE AGAINST SELLER IN A COURT HAVING JURISDICTION IN THE COUNTY AND
STATE IN WHICH THE PROPERTY IS LOCATED, ON OR BEFORE THIRTY (30) DAYS FOLLOWING
THE DATE UPON WHICH CLOSING WAS TO HAVE OCCURRED. THE REMEDIES SET FORTH IN THIS
SECTION 6.2 SHALL BE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO PURCHASER FOR
SELLER'S FAILURE TO CLOSE THE TRANSACTION WHICH IS THE SUBJECT OF THIS AGREEMENT
IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
6.3
POST-CLOSING REMEDIES. NOTWITHSTANDING THE
PROVISIONS OF SECTION 6.1 AND SECTION 6.2 ABOVE, IN THE EVENT THAT AFTER THE
TERMINATION OF THIS AGREEMENT OR AFTER CLOSING, AS THE CASE MAY BE, A PARTY (THE
"DEFAULTING PARTY") BREACHES AN OBLIGATION HEREUNDER WHICH IS EXPRESSLY STATED
HEREIN TO SURVIVE THE TERMINATION OF THIS AGREEMENT OR CLOSING, AS THE CASE MAY
BE, THE DEFAULTING PARTY SHALL BE LIABLE TO THE OTHER PARTY (THE "NON-DEFAULTING
PARTY") FOR THE DIRECT, ACTUAL DAMAGES INCURRED BY THE NON-DEFAULTING PARTY AS A
DIRECT RESULT OF SUCH BREACH. IN NO EVENT SHALL THE NON-DEFAULTING PARTY BE
ENTITLED TO RECOVER FROM THE DEFAULTING PARTY ANY PUNITIVE, CONSEQUENTIAL OR
SPECULATIVE DAMAGES.
14
ARTICLE VII
RISK OF LOSS
7.1
MINOR DAMAGE. IN THE EVENT OF LOSS OR DAMAGE
TO THE PROPERTY OR ANY PORTION THEREOF (THE "PREMISES IN QUESTION") WHICH IS NOT
"MAJOR" (AS HEREINAFTER DEFINED), THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND
EFFECT PROVIDED