Default by Seller In the event that the transaction contemplated by this Agreement fails to close due to Seller's default, Purchaser shall be entitled, as its sole remedy, either: (a) to receive the return of the Deposit, which return shall operate to terminate this Agreement and release Seller from any and all liability hereunder, provided that Seller shall reimburse Purchaser for all reasonable out-of-pocket costs incurred by Purchaser in connection with the negotiation of this Agreement and its inspection of the Property, not to exceed $75,000, plus reimbursement of any fees due pursuant to Section 10.16 hereof or (b) to enforce specific performance of Seller's obligations under this Agreement, it being acknowledged that the Property is unique and that monetary damages would not be an adequate remedy of specific performance shall not be available to enforce any other obligation of Seller hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and receive back the Deposit if Purchaser 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 ninety (90) days following the date upon which Closing was to have occurred. If Purchaser timely elects to seek specific performance of this Agreement, then as a condition precedent to any suit for specific performance, Purchaser shall, on or before the Closing Date, time being of the essence, fully perform all of its obligations hereunder which arc capable of being performed (other than the payment of the Purchase Price, which shall be paid as and when required by the court in the suit for specific performance). In addition, notwithstanding any provision to the contrary contained in this Agreement, the parties hereto hereby agree that Seller's aggregate liability for any actual or alleged default or breach of this Agreement (including, without limitation, any breach of a representation or warranty made by Seller hereunder, but excluding any claim based upon Seller failure to close the sale of the Property when legally required to do so as to which Purchaser's sole remedies are set forth in the first sentence of this Section 6.2), or any other claim arising under or relating to this Agreement and/or the Property, shall not exceed the Cap (as defined in Section 5.3 hereof). The foregoing limitation of remedies and liability was separately bargained for and constitutes material consideration for Seller entering into this Agreement.
