and (3) Buyer may only
pursue the remedy of actual damages pursuant to this Section 3.21 in the event
that (A) in violation of this Agreement, Seller sells, pledges or encumbers the
Property, and the remedy of specific performance is not available to Buyer, or
(B) Seller has committed fraud. The provisions of this 3.21 shall be Buyer's
sole and exclusive remedies for any breach of the obligations by Seller of the
terms of this Agreement, and Buyer hereby waives all other remedies.
Notwithstanding any provision to the contrary set forth herein, but subject to
the
45
conditions and limitations set forth in Section and Section 3.2.4,
nothing set forth herein shall limit or impair any remedies that may be
available to Buyer for or in connection with a breach by Seller of its Property
Representations set forth above in Section 3.2.1 or in connection with any
post-closing indemnities or other post-closing obligations of Seller that are
expressly set forth herein or in any of the Seller's Closing Documents.
3.22 LIQUIDATED DAMAGES AND LIMITATION ON REMEDIES FOR BREACH BY BUYER. IF
THE BUYER IN BREACH OF THIS AGREEMENT FAILS TO CLOSE OR TO PERFORM ANY OTHER
OBLIGATION REQUIRED OF IT PURSUANT TO THE TERMS OF THIS AGREEMENT, EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN, SELLER SHALL, AS ITS SOLE AND EXCLUSIVE
REMEDY ON ACCOUNT OF SUCH FAILURE AND IN CONSIDERATION OF ITS WITHDRAWAL OF THE
PROPERTY FROM THE MARKET DURING THE TERM OF THIS AGREEMENT, BE ENTITLED TO
TERMINATE THIS AGREEMENT AND TO RECEIVE AND RETAIN, AS LIQUIDATED DAMAGES (AND
NOT AS A PENALTY), THE ENTIRE DEPOSIT; AND SELLER SPECIFICALLY WAIVES ANY RIGHT
SPECIFICALLY TO ENFORCE THE OBLIGATIONS OF THE BUYER HEREUNDER TO PURCHASE THE
PROPERTY OR FOR MONETARY DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT:
3.22.1 THE WRONGFUL FAILURE BY THE BUYER TO CLOSE OR TO PERFORM ANY OTHER
OBLIGATION REQUIRED OF IT PURSUANT TO THE TERMS OF THIS AGREEMENT WILL CAUSE
SELLER TO INCUR LOSSES AND OTHER DAMAGES IN AN AMOUNT THAT WOULD BE EXTREMELY
DIFFICULT TO ASCERTAIN.
3.22.2 THE DEPOSIT BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES WHICH THE
PARTIES ESTIMATE SELLER WILL SUFFER BY REASON OF THE BUYER'S WRONGFUL FAILURE TO
CLOSE AND IS NOT AN UNREASONABLE AMOUNT OF LIQUIDATED DAMAGES UNDER THE
CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT IS MADE.
3.22.3 SUCH LIQUIDATED DAMAGES ARE ALSO REASONABLE CONSIDERATION FOR SELLER'S
AGREEMENT TO LIMIT ITS REMEDIES AGAINST THE BUYER FOR SUCH A FAILURE TO CLOSE OR
TO PERFORM ANY OTHER OBLIGATION REQUIRED OF IT PURSUANT TO THE TERMS OF THIS
AGREEMENT.
3.22.4 THE BUYER HAS FULLY CONSIDERED THE PROVISIONS OF THIS SECTION 3.22 AND
HAS CONSULTED WITH ITS LEGAL COUNSEL WITH RESPECT THERETO.
3.22.5 THE FOREGOING SECTIONS SHALL NOT, HOWEVER, (i) APPLY IN THE EVENT BUYER
HAS COMMITTED FRAUD, OR (ii) LIMIT SELLER'S RIGHTS AND REMEDIES TO ENFORCE
OBLIGATIONS OF BUYER UNDER SECTIONS 3.1.2, 3.5.1, 3.9 AND/OR 3.25, OR OF THE
BUYER AS MAY BE SET FORTH ELSEWHERE IN THIS AGREEMENT OR IN