AFTER SELLER RECEIVES WRITTEN NOTICE THEREOF
FROM BUYER, SUCH BREACH SHALL CONSTITUTE A DEFAULT UNDER THIS AGREEMENT AND
BUYER SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT AND BE RELEASED FROM ITS
OBLIGATION TO PURCHASE THE PROPERTY FROM SELLER. IN THE EVENT OF TERMINATION OF
THIS AGREEMENT UNDER THIS PARAGRAPH 20(a), BUYER SHALL, AS BUYER'S SOLE AND
EXCLUSIVE REMEDY THEREFORE, BE ENTITLED TO A REFUND OF THE DEPOSIT AND TO
RECOVER BUYER'S REASONABLE AND ACTUAL OUT-OF-POCKET COSTS (DOCUMENTED BY PAID
INVOICES TO THIRD PARTIES) INCURRED WITH RESPECT TO THIS AGREEMENT, THE
TRANSACTION DESCRIBED HEREIN AND THE DUE DILIGENCE PERFORMED IN CONNECTION
HEREWITH, NOT TO EXCEED $150,000.00 IN THE AGGREGATE. EXCEPT AS SET FORTH IN
THIS PARAGRAPH 20(a), BUYER SHALL HAVE NO RIGHT TO RECEIVE ANY EQUITABLE RELIEF.
BUYER EXPRESSLY WAIVES ANY RIGHT UNDER THE LAW OF THE STATE OR AT COMMON LAW OR
OTHERWISE TO RECORD A LIS PENDENS OR A NOTICE OF PENDENCY OF ACTION OR SIMILAR
NOTICE AGAINST ALL OR ANY PORTION OF THE PROPERTY IN CONNECTION WITH ANY ALLEGED
DEFAULT BY SELLER HEREUNDER. NOTWITHSTANDING THE FOREGOING, IF SELLER SHALL
BREACH THIS AGREEMENT SOLELY BY FAILING TO DELIVER THE SPECIAL WARRANTY DEED OR
ANY OF THE OTHER DOCUMENTS SET FORTH IN PARAGRAPH 10(a) OF THIS AGREEMENT AND
BUYER HAS TIMELY PERFORMED ALL OF ITS COVENANTS AND CONDITIONS UNDER THE TERMS
OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, DEPOSITING THE PURCHASE PRICE
into ESCROW) AND IS OTHERWISE PREPARED TO CLOSE THIS TRANSACTION, THEN, AND ONLY
THEN, BUYER SHALL BE ENTITLED TO ELECT THE ALTERNATIVE REMEDY OF SPECIFIC
PERFORMANCE. THE FOREGOING OPTIONS ARE MUTUALLY EXCLUSIVE AND ARE THE SOLE AND
EXCLUSIVE RIGHTS AND REMEDIES AVAILABLE TO BUYER AT LAW OR IN EQUITY IN THE
EVENT OF A SELLER BREACH OF OR DEFAULT UNDER THIS AGREEMENT PRIOR TO
27
THE CLOSING. NOTWITHSTANDING THE FOREGOING, BUYER SHALL BE CONCLUSIVELY AND
IRREVOCABLY DEEMED TO WAIVED THE REMEDY OF SPECIFIC PERFORMANCE IF BUYER FAILS
TO FILE SUIT FOR SPECIFIC PERFORMANCE AGAINST SELLER IN A COURT HAVING
JURISDICTION IN THE COUNTY AND STATE IN WHICH THE PROPERTY IS LOCATED ON OR
BEFORE SIXTY (60) DAYS FOLLOWING THE OUTSIDE CLOSING DATE OR EARLIER DATE UPON
WHICH THE CLOSING WAS TO HAVE OCCURRED.
(b)
Breach by Buyer. IN THE EVENT THE CLOSING AND THE CONSUMMATION OF THE
TRANSACTIONS HEREIN CONTEMPLATED DO NOT OCCUR AS HEREIN PROVIDED BY REASON OF A
BREACH OF ANY OF THE TERMS OF THIS AGREEMENT BY BUYER, WHICH BREACH IS NOT CURED
WITHIN TEN (10) BUSINESS DAYS AFTER BUYER RECEIVES WRITTEN NOTICE THEREOF FROM
SELLER OR SHF, SUCH BREACH SHALL CONSTITUTE A DEFAULT UNDER THIS AGREEMENT AND
SELLER SHALL BE RELEASED FROM ITS OBLIGATION TO SELL THE PROPERTY TO BUYER.
BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER AS A RESULT OF SUCH BREACH.
THEREFORE BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE
TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS
AND FAILS