to timely cure such
default, Buyer, at Buyer's option and as the sole and exclusive remedy of Buyer,
either may: (i) terminate this Agreement, in which event (A) the Deposit shall
be returned to Buyer, (B) Seller shall pay any cancellation charges of Escrow
Agent, (C) Seller shall be obligated to reimburse Buyer for all out-of-pocket
due diligence expenses and attorneys fees incurred by Buyer to the date of such
termination, not to exceed a total of $75,000.00, and (D) Buyer shall be
discharged from all duties and performance hereunder, except for any obligations
which by their terms survive any termination of this Agreement; or (ii) pursue
and obtain specific performance of Seller's obligations hereunder (without the
necessity of proving irreparable harm or posting any security), including to
convey the Property as provided herein.
(a) Breach by Buyer. Buyer shall be in default hereunder if: (a) any
representation or warranty made by Buyer is or becomes false in any material
respect; or (b) Buyer fails to cure (within the time frame set forth below) any
breach of any obligation of Buyer under this Agreement. If Buyer defaults on any
provision hereof, Seller, as a condition precedent to the exercise of its
remedies or termination of this Agreement, shall be required to give Buyer
written notice of the same. Buyer shall have 3 Business Days from the receipt of
such notice to cure the default. If Buyer timely cures the default, the default
shall be deemed waived and this Agreement shall continue in full force and
effect. If such default occurs prior to Closing and Buyer fails to timely cure
such default, Seller shall be entitled to terminate this Agreement pursuant to
the terms of this Section 13.2. IF SELLER TERMINATES THIS AGREEMENT PURSUANT TO
THIS SECTION 13.2 PRIOR TO CLOSING, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL
DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES
THEREFORE AGREE THAT, IN SUCH EVENT, SELLER, AS SELLER'S SOLE AND EXCLUSIVE
REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT
(EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON), IN WHICH CASE (A) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER SHALL BE
OF NO FURTHER FORCE OR EFFECT AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER OTHER THAN PURSUANT TO ANY PROVISION HEREOF WHICH
EXPRESSLY SURVIVES THE TERMINATION OF THIS AGREEMENT, (B) ESCROW AGENT SHALL
DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO
SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED
AND LIQUIDATED DAMAGES, (C) ALL TITLE AND ESCROW CANCELLATION CHARGES, IF ANY,
SHALL BE CHARGED TO BUYER, AND (D) ESCROW AGENT SHALL DELIVER TO BUYER ALL
INTEREST AND DIVIDENDS EARNED ON THE DEPOSIT. THE PARTIES HEREBY AGREE THAT THE
AMOUNT OF THE DEPOSIT IS A FAIR AND REASONABLE ESTIMATE OF THE TOTAL DETRIMENT
THAT SELLER WOULD SUFFER IN THE EVENT THE CLOSING DOES NOT OCCUR DUE TO BUYER'S
BREACH HEREOF. SELLER IRREVOCABLY WAIVES