below, each party specifically confirms the accuracy of the statements
made above, the reasonableness of the amount of liquidated damages agreed upon,
and the fact that each party was represented by counsel who explained, at the
time this agreement was made, the consequences of this liquidated damages
provision.
INITIALS:
FXT
MJH
Seller
Buyer
(B)
SELLER'S DEFAULT.
IF THE CLOSING DOES NOT OCCUR AS A RESULT
OF SELLER'S DEFAULT HEREUNDER, THEN, PROVIDED BUYER IS NOT IN DEFAULT HEREUNDER,
BUYER MAY, AT ITS SOLE ELECTION, PROCEED WITH ONE OF THE FOLLOWING MUTUALLY
EXCLUSIVE ALTERNATIVES:
(I)
PROCEED WITH THE CLOSING WITH NO REDUCTION IN THE
PURCHASE PRICE; PROVIDED, HOWEVER, THAT IN PROCEEDING WITH THE CLOSING PURSUANT
TO THIS SUBPARAGRAPH (I), BUYER SHALL BE DEEMED TO HAVE WAIVED ANY DEFAULT OF
SELLER OF WHICH BUYER HAS ACTUAL KNOWLEDGE PRIOR TO THE CLOSING, UNLESS BUYER
GIVES SELLER WRITTEN NOTICE OF SUCH DEFAULT PRIOR TO THE CLOSING, WHICH NOTICE
EXPRESSLY STATES THAT BUYER INTENDS TO PRESERVE A POST-CLOSING CLAIM TO SUCH
DEFAULT; AND PROVIDED, FURTHER, THAT:
(1) IN NO EVENT SHALL SELLER'S LIABILITY
TO BUYER FOR ANY PRE-CLOSING DEFAULT NOT WAIVED OR DEEMED WAIVED BY BUYER
(INCLUDING, BUT NOT LIMITED TO, ANY BREACH OF ANY REPRESENTATION OR WARRANTY
UNDER THIS AGREEMENT OR PURSUANT TO SELLER'S CLOSING CERTIFICATION, AS DESCRIBED
IN SECTION 4.5 ABOVE) EXCEED, IN THE AGGREGATE, SIX HUNDRED TWENTY-FIVE THOUSAND
DOLLARS ($625,000.00); AND (2) NO CLAIM FOR ANY PRE-CLOSING DEFAULT OF SELLER
SHALL BE VALID UNLESS SUIT THEREON IS FILED IN A COURT OF COMPETENT JURISDICTION
PRIOR TO THE EXPIRATION OF THE SURVIVAL PERIOD;
(II)
TERMINATE THIS AGREEMENT, WHEREUPON THE DEPOSIT SHALL BE
RETURNED AND PAID TO BUYER, AND NEITHER PARTY SHALL HAVE ANY FURTHER LIABILITY
OR OBLIGATION TO THE OTHER HEREUNDER, EXCEPT FOR PROVISIONS OF THIS AGREEMENT
WHICH EXPRESSLY STATE THAT THEY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT;
PROVIDED, HOWEVER, THAT IF SUCH DEFAULT IS OF A NATURE SUCH THAT IT CAN BE CURED
ON OR BEFORE THE CLOSING DATE, BUYER SHALL GIVE SELLER WRITTEN NOTICE OF SUCH
DEFAULT PRIOR TO EXERCISING ITS RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO
THIS SUBPARAGRAPH (II), AND BUYER MAY NOT EXERCISE SUCH TERMINATION RIGHT UNLESS
SELLER FAILS TO CURE SUCH DEFAULT ON OR BEFORE THE CLOSING DATE; OR
(III)
FILE IN ANY COURT OF COMPETENT JURISDICTION AN ACTION FOR
SPECIFIC PERFORMANCE TO CAUSE SELLER TO CONVEY THE PROPERTY TO BUYER PURSUANT TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT AND RECOVERY OF ACTUAL THIRD PARTY
OUT-OF-POCKET COSTS INCURRED BY BUYER IN
22
connection with this Agreement up to an amount not to exceed in the aggregate
Seventy-Five Thousand Dollars ($75,000.00); but Buyer shall not be entitled to
recover monetary damages from Seller in connection with such default.
11.
EXPENSES
(A)
ALL DOCUMENTARY STAMP TAXES AND COUNTY TRANSFER TAXES
SHALL BE BORNE AND PAID BY SELLER, AND ALL RECORDING FEES AND ANY CITY TRANSFER
TAXES SHALL BE BORNE AND PAID ONE-HALF BY SELLER AND ONE-HALF BY BUYER.
(B)
ALL ESCROW AND CLOSING COSTS CHARGED BY THE