tendered the Purchase Price) and the Closing Date with respect to such
Properties is not extended pursuant to an express provision of this Agreement or
by mutual agreement of the parties, then the Deposit shall promptly be returned
to Purchaser promptly following Purchaser's request for the same.
Except as
otherwise expressly provided for in this Agreement, any termination of this
Agreement for any reason shall be a termination with respect to all of the
Properties that have not been acquired by Purchaser as of the time of such
termination.
Section 10.2
Purchaser's Default.
If the Closing
contemplated hereby is not consummated because of a default by Purchaser in its
obligation to purchase the Properties in accordance with the terms of this
Agreement after Sellers have performed or tendered performance of all of their
material obligations in accordance with this Agreement, then:
(a) this
Agreement shall terminate; (b) the Deposit shall be paid to and retained by
Sellers as liquidated damages; and (c) except for Purchaser's Surviving
Obligations, Sellers and Purchaser shall have no further obligations to each
other.
THE PARTIES HERETO, BEFORE ENTERING INTO THIS AGREEMENT, HAVE BEEN
CONCERNED WITH THE FACT THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLERS IN
THE EVENT THAT PURCHASER SHOULD FAIL TO PURCHASE THE PROPERTY SUBJECT TO AND IN
ACCORDING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
PURCHASER AND SELLERS
ACKNOWLEDGE THAT THE DAMAGES TO SELLERS IN THE EVENT OF A BREACH OF THIS
AGREEMENT BY PURCHASER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE
AMOUNT OF THE DEPOSIT REPRESENTS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF
THE DAMAGES THAT WOULD BE SUFFERED BY SELLERS IF THE TRANSACTION SHOULD FAIL TO
CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS
OF THE EFFECTIVE DATE AND UNDER THE CIRCUMSTANCES THAT SELLERS AND PURCHASER
REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH.
THE PARTIES,
HAVING MADE A DILIGENT ENDEAVOR TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES
WHICH SELLERS WOULD SUFFER IN THE EVENT OF PURCHASER'S FAILURE TO PURCHASE THE
PROPERTY SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT, HEREBY AGREE THAT THE REASONABLE ESTIMATE OF SAID DAMAGES IS THE SUM
EQUAL TO THE AMOUNT OF THE DEPOSIT.
THEREFORE, IN THE EVENT THAT THE SALE
CONTEMPLATED HEREBY SHALL FAIL TO CLOSE FOR ANY REASON OTHER THAN SELLERS'
DEFAULT HEREUNDER OR THE FAILURE OF ANY CONDITION PRECEDENT IN FAVOR OF
PURCHASER EXPRESSLY
49
SET FORTH IN THIS AGREEMENT, SELLERS SHALL BE ENTITLED TO AND SHALL RETAIN THE
ENTIRE DEPOSIT AS LIQUIDATED DAMAGES AND AS ITS SOLE REMEDY AT LAW OR IN
EQUITY.
THE AMOUNT OF THE LIQUIDATED DAMAGES HAS BEEN ESTABLISHED BY THE
PARTIES AS THE AMOUNT OF THE MONETARY DAMAGES SELLER WILL SUFFER BASED SOLELY
UPON A FAILURE BY PURCHASER TO PURCHASE THE PROPERTY AND SELLERS SHALL BE
ENTITLED TO RECOVER NO OTHER DAMAGES FROM PURCHASER BASED SOLELY UPON A FAILURE
BY PURCHASER TO PURCHASE THE PROPERTY.
This Section 10.2 is intended only to