SHALL BE PAID OR
ASSIGNED TO BUYER AT THE CLOSING; OR (II) IN THE CASE OF A CASUALTY, SELLER
SHALL ASSIGN TO BUYER ALL RIGHTS TO ANY INSURANCE PROCEEDS PAID OR PAYABLE UNDER
THE APPLICABLE INSURANCE POLICIES.
IN NO EVENT SHALL SELLER HAVE ANY OBLIGATION
TO RESTORE ANY DAMAGE TO THE PROPERTY CAUSED BY OR ARISING FROM A CONDEMNATION
OR CASUALTY EVENT, NOR SHALL BUYER HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AS
A RESULT THEREOF OTHER THAN AS PROVIDED IN SECTION 9.1 ABOVE.
10.
REMEDIES FOR BUYER'S DEFAULT AND SELLER'S DEFAULT.
10.1
BUYER'S DEFAULT.
IN THE EVENT BUYER BREACHES OR FAILS TO PERFORM
ITS OBLIGATION TO PURCHASE THE PROPERTY UNDER THIS AGREEMENT, THEN SELLER SHALL,
AS ITS SOLE REMEDY THEREFOR, BE ENTITLED TO RECEIVE THE DEPOSIT MADE PURSUANT TO
SECTION 2 HEREOF, INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON, AS
LIQUIDATED DAMAGES (AND NOT AS A PENALTY) IN LIEU OF, AND AS FULL COMPENSATION
FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH
DEFAULT.
THEREUPON THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL BE
RELIEVED OF ALL FURTHER OBLIGATIONS AND LIABILITIES HEREUNDER, EXCEPT FOR THOSE
OBLIGATIONS WHICH EXPRESSLY SURVIVE CLOSING OR TERMINATION OF THIS AGREEMENT.
BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER RESULTING FROM BUYER'S
BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND
THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN THIS SECTION REPRESENTS BOTH
PARTIES' EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES.
NOTWITHSTANDING THE
FOREGOING, OR ANY OTHER PROVISION TO THE CONTRARY, THIS SECTION 10.1 SHALL IN NO
WAY LIMIT OR
12
RESTRICT SELLER'S RECOVERY UNDER SECTION 5.2 ABOVE AND/OR SECTION 14.10 BELOW.
/s/ WC Seller's Initials
/s/ AB /s/ JB
Buyer's Initials
10.2
SELLER BREACH BEFORE CLOSING.
IN THE EVENT THAT THE CLOSING DOES
NOT OCCUR AS A RESULT OF A SELLER'S BREACH WHICH IS NOT CURED BY SELLER WITHIN
FIVE (5) DAYS AFTER WRITTEN NOTICE FROM BUYER TO SELLER OF SUCH SELLER'S BREACH,
BUYER SHALL BE ENTITLED TO (A) BRING AN ACTION FOR SPECIFIC PERFORMANCE IF FILED
AND SERVED UPON SELLER WITHIN SIXTY (60) DAYS AFTER THE OCCURRENCE OF SUCH
ALLEGED BREACH, OR (B) TERMINATE THIS AGREEMENT, OBTAIN A REFUND OF THE DEPOSIT,
IF MADE, AND PURSUE ANY REMEDIES AT LAW TO WHICH IT MAY BE LEGALLY ENTITLED;
PROVIDED, HOWEVER, THAT (I) SELLER'S LIABILITY FOR ANY SUCH SELLER'S BREACH
SHALL BE LIMITED TO CLAIMS FOR WHICH THE DAMAGES ARE NOT LESS THAN FIFTY
THOUSAND DOLLARS ($50,000) AND SHALL BE SUBJECT TO AN AGGREGATE MAXIMUM SUM OF
THREE HUNDRED THOUSAND DOLLARS ($300,000), AND (II) SELLER SHALL IN NO EVENT
HAVE ANY LIABILITY FOR MATTERS DISCLOSED TO BUYER IN ANY DOCUMENTS AND
INFORMATION PRODUCED FOR BUYER PURSUANT TO THIS AGREEMENT OR DISCOVERED BY BUYER
PRIOR TO TERMINATION OF THIS AGREEMENT, AND (III) SELLER SHALL HAVE NO LIABILITY
FOR ANY SUCH SELLER'S BREACH UNLESS SUCH DAMAGE CLAIM IS EXPRESSLY ASSERTED BY
BUYER IN AN ACTION FILED AND SERVED ON SELLER WITHIN ONE (1) YEAR FOLLOWING THE
TERMINATION