AS AND WHEN
REQUIRED UNDER THIS AGREEMENT, AT THE WRITTEN ELECTION OF SELLER TO BUYER AND
ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE
PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE
ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS
LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY (AS PERMITTED BY THE
OFFICIAL CODE OF GEORGIA ANNOTATED ("O.C.G.A.") §13-6-7). BUYER AND SELLER
HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY
DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT
OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS
A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES
AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF
SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE
PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S
BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S
RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT
THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR
REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD
OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE
TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE
PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE
TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING
OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION
SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES
SET FORTH IN THIS AGREEMENT THAT EXPRESSLY
11476794.5
19
SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW
HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT
IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE
LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT.
SELLER'S INITIALS: ___AS___
BUYER'S INITIALS: ___DD___
5.2
Seller's Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY
REASON OF A MATERIAL DEFAULT BY SELLER UNDER THIS AGREEMENT, OR SELLER OTHERWISE
MATERIALLY DEFAULTS ON ITS OBLIGATIONS HEREUNDER AT OR PRIOR TO CLOSING, OR IF
PRIOR TO CLOSING ANY ONE OR MORE OF SELLER'S REPRESENTATIONS OR WARRANTIES ARE
BREACHED IN ANY MATERIAL RESPECT (AND SELLER DOES NOT CURE SUCH MATERIAL DEFAULT
OR BREACH WITHIN FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM BUYER, EXCEPT NO
NOTICE OR CURE PERIOD SHALL APPLY IF SELLER FAILS TO DELIVER THE CLOSING
DOCUMENTS ON THE CLOSING DATE), BUYER SHALL BE RELEASED FROM BUYER'S OBLIGATION
TO PURCHASE THE PROPERTY FROM SELLER, AND BUYER MAY ELECT, AS BUYER'S SOLE AND
EXCLUSIVE REMEDY, TO EITHER (A)