DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH
DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A
REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES
AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF
SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE
PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S
BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S
RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT
THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR
REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD
OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE
TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE
PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE
TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING
OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION
SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES
SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO
SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT
INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED
DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION
5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING
DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF
SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE
PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS
SECTION 5.1 OF THE PARALLEL AGREEMENT.
-15-
SELLER'S INITIALS:
MCT
BUYER'S INITIALS:
AMDR
5.2
Seller's Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY
REASON OF A MATERIAL DEFAULT BY SELLER UNDER THIS AGREEMENT, OR SELLER OTHERWISE
MATERIALLY DEFAULTS ON ITS OBLIGATIONS HEREUNDER AT OR PRIOR TO CLOSING, OR IF
PRIOR TO CLOSING ANY ONE OR MORE OF SELLER'S REPRESENTATIONS OR WARRANTIES ARE
BREACHED IN ANY MATERIAL RESPECT (AND SELLER DOES NOT CURE SUCH MATERIAL DEFAULT
OR BREACH WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE
THEREOF FROM BUYER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE
PERIOD SHALL APPLY IF SELLER FAILS TO DELIVER THE CLOSING DOCUMENTS ON THE
SPECIFIED CLOSING DATE), BUYER SHALL BE RELEASED FROM BUYER'S OBLIGATION TO
PURCHASE THE PROPERTY FROM SELLER, AND BUYER MAY ELECT, AS BUYER'S SOLE AND
EXCLUSIVE REMEDY, TO EITHER (A) TERMINATE THIS AGREEMENT AND HAVE THE DEPOSIT TO
THE EXTENT MADE (BUT NOT THE INDEPENDENT CONSIDERATION) RETURNED TO BUYER, WITH
SELLER PAYING FOR ALL ESCROW CANCELLATION COSTS AND, IF AND ONLY IF SUCH DEFAULT
IS A