forty-five
(45) days following the date upon which the Closing was to have occurred.
6.3 BUYER's Failure. IF BUYER FAILS TO PERFORM ITS OBLIGATIONS TO PURCHASE THE
PROPERTY PURSUANT TO THIS AGREEMENT FOR ANY REASON OTHER THAN SELLER'S PRIOR
UNCURED DEFAULT HEREUNDER, THEN ESCROW COMPANY SHALL DELIVER THE DEPOSIT TO
SELLER, OR IF IN SELLER'S POSSESSION, SELLER SHALL RETAIN, AS FULL COMPENSATION
AND AS LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT, WITHOUT
THE NECESSITY OF GIVING NOTICE TO BUYER, WITHOUT FURTHER INSTRUCTIONS FROM
BUYER, AND NOTWITHSTANDING CONFLICTING INSTRUCTIONS FROM BUYER OR CONTRARY
INSTRUCTIONS CONTAINED IN ESCROW COMPANY'S GENERAL PROVISIONS. SELLER SHALL BE
ENTITLED TO TERMINATE THIS AGREEMENT AND RECOVER AND RETAIN THE DEPOSIT PLUS ALL
COSTS OF ENFORCING AND DEFENDING SELLER'S RIGHTS UNDER THIS SECTION AS
LIQUIDATED DAMAGES AND NOT AS A PENALTY, IN FULL SATISFACTION OF CLAIMS AGAINST
BUYER HEREUNDER. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IN THE EVENT
OF A DEFAULT OR BREACH BY BUYER IN THE PERFORMANCE OF BUYER'S OBLIGATIONS
HEREUNDER, PRIOR TO CLOSING, SELLER'S DAMAGES WOULD BE EXTREMELY DIFFICULT OR
IMPOSSIBLE TO DETERMINE, THAT THE DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE
ESTIMATE OF THE DAMAGES SELLER WOULD
14
SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO BE
CONSUMMATED, AND THUS SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT. NOTHING HEREIN CONTAINED, HOWEVER, SHALL
BE DEEMED TO IN ANY WAY SATISFY, DISCHARGE, OR TERMINATE BUYER'S AGREEMENTS
HEREIN TO INDEMNIFY SELLER ENTITIES AND THE PROPERTY AND TO HOLD SELLER ENTITIES
AND THE PROPERTY HARMLESS, AS SPECIFICALLY STATED IN THIS AGREEMENT, AND
SELLER'S RIGHTS AND REMEDIES ARISING OUT OF SUCH INDEMNITY AND HOLD HARMLESS
AGREEMENTS SHALL SURVIVE AND SHALL BE IN ADDITION TO THIS LIQUIDATED DAMAGES
PROVISION. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
IF BUYER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED DEFAULT BY SELLER OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, DISPUTES SELLER'S RIGHT TO RECEIVE OR RETAIN
THE DEPOSIT, AND/OR RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS
SELLER'S ABILITY TO SELL AND TRANSFER THE PROPERTY (EACH, A "BUYER'S ACTION"),
SELLER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION FROM BRINGING
AN ACTION AGAINST BUYER SEEKING EXPUNGEMENT OR RELIEF FROM THAT LIS PENDENS,
INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS OR EXPENSES
(INCLUDING ATTORNEYS' FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF
BUYER'S ACTION SHOULD SELLER BE THE PREVAILING PARTY IN THAT ACTION; AND THE
AMOUNT OF ANY SUCH FEES, COSTS OR EXPENSES AWARDED TO SELLER SHALL BE IN
ADDITION TO THE LIQUIDATED DAMAGES SET FORTH HEREIN.
BUYER'S INITIALS:
_________________________
SELLER'S INITIALS:
_________________________
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Waiver and Consent. Each provision of this Agreement to be performed by
either party shall be deemed both a covenant and a condition and shall be a
material consideration for the other party's performance hereunder, and any
breach thereof by either party shall be deemed a material default hereunder.
Either party