provided that Purchaser is not in
material default under this Agreement on the Closing Date, Purchaser shall be
entitled, as its sole remedy, to either (i) the return of the Deposit together
with all interest thereon or (ii) to seek specific performance of this
Agreement, provided that any action for specific performance must be initiated
no later than thirty (30) days after the default by Seller. Upon Seller
providing such remedies to Purchaser, neither Seller nor Purchaser shall have
any rights against or obligations to the other arising out of this Agreement,
except for obligations that expressly survive termination of this Agreement.
19.
LIQUIDATED DAMAGES AND LIMITATIONS OF REMEDIES FOR BUYER'S BREACH. IF
BUYER IN BREACH OF THIS AGREEMENT FAILS TO CLOSE, THEN UPON WRITTEN NOTICE OF
TERMINATION (A "TERMINATION NOTICE") FROM SELLER TO BUYER AND ESCROW AGENT, THIS
AGREEMENT SHALL TERMINATE (EXCEPT FOR THIS SECTION AND BUYER'S OBLIGATIONS
PURSUANT TO SECTIONS 4.6, 16.2 AND 16.9). THE PARTIES ACKNOWLEDGE AND AGREE BY
INITIALING THIS SECTION 19 THAT:
19.1
IF BUYER FAILS TO CLOSE IN BREACH OF THIS AGREEMENT, SELLER WILL INCUR
CERTAIN COSTS AND OTHER DAMAGES IN AN AMOUNT THAT WOULD BE EXTREMELY DIFFICULT
OR IMPRACTICAL TO ASCERTAIN.
19.2
THE DEPOSIT, TOGETHER WITH ALL INTEREST EARNED THEREON, BEARS A
REASONABLE RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE
SUFFERED BY SELLER BY REASON OF SUCH A FAILURE OF CLOSING TO OCCUR, AND THE
DEPOSIT AND INTEREST IS NOT AN AMOUNT WHICH IS UNREASONABLE UNDER THE
CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT IS MADE (BUYER ACKNOWLEDGING
AND AGREEING THAT BUYER HAS FULLY CONSIDERED THE PROVISIONS OF THIS SECTION 19
AND SUCH CIRCUMSTANCES PRIOR TO ENTERING INTO THIS AGREEMENT AND HAS CONSULTED
WITH BUYER'S COUNSEL WITH RESPECT THERETO); AND
19.3
UPON DELIVERY TO ESCROW AGENT BY SELLER OF A PROPERLY GIVEN TERMINATION
NOTICE, SELLER SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT, TOGETHER
WITH ALL INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE
SELLER'S SOLE REMEDY HEREUNDER IF BUYER IN BREACH OF THIS AGREEMENT FAILS TO
CLOSE, AND BUYER SHALL FORTHWITH INSTRUCT ESCROW AGENT TO RELEASE THE DEPOSIT
AND ALL INTEREST EARNED THEREON TO SELLER AND TO RETURN TO SELLER ALL DOCUMENTS
AND INSTRUMENTS THERETOFORE DEPOSITED INTO THE ESCROW BY OR ON BEHALF OF THEM;
PROVIDED, HOWEVER, THAT THE DEPOSIT SHALL BE IN ADDITION TO AND NOT IN LIEU OF
ANY AMOUNTS OWED TO SELLER BY BUYER AS A RESULT OF BUYER'S OBLIGATIONS PURSUANT
TO
40
SECTIONS 4.6, 16.2 AND 16.9; AND PROVIDED FURTHER THAT SELLER SHALL BE ENTITLED
TO RECOVER FROM BUYER ATTORNEYS' FEES AND OTHER DIRECT OUT-OF-POCKET COSTS
INCURRED BY THEM IN CONNECTION WITH THE ENFORCEMENT OR DEFENSE OF OBLIGATIONS
CONTAINED IN THIS SECTION 19.
IN FURTHER EVIDENCE OF THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES PROVISION,
SELLER AND BUYER HAVE INITIALED BELOW:
SELLER:
BUYER:
[SIGNATURE PAGES FOLLOW]
41
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed and
delivered, each its own representative thereunto duly authorized, as of the