Seller Default If a Seller defaults (i) in its obligations hereunder to deliver to Escrow Agent the deliveries specified under Section 5.2 with respect to such Seller on the date required thereunder, or (ii) to close on the sale of such Seller’s Property on the Closing Date, then, provided that Purchaser is not in default under this Contract, at Purchaser's election and as Purchaser's sole and exclusive remedy, Purchaser may exercise its rights set forth in this Section 10.2 without any further opportunity of such Seller to receive notice or to cure such default. If a Seller, prior to the Closing, defaults in its other covenants or obligations under this Contract (other than such Seller’s obligation to close on the sale of such Seller’s Property on the Closing Date), and such default continues for more than ten (10) days after written notice from Purchaser, then, provided that Purchaser is not in default under this Contract, at Purchaser's election and as Purchaser's sole and exclusive remedy, Purchaser may either (a) subject to the conditions below, seek specific performance of the defaulting Seller’s obligation to deliver its Deed pursuant to this Contract (but not damages), or (b) give a Termination Notice to Sellers’ Representative of Purchaser’s decision to terminate this Contract for the Property for which there was such a default and receive a return of the Allocated Deposit Amount for such Property from Escrow Agent. If Purchaser, pursuant to any provision of this Section 10.2, elects to terminate this Contract for the Property for which there was a default, then Purchaser may recover, as its sole recoverable damages (but without limiting its right to receive a refund of the Allocated Deposit Amount for such terminated Property), its direct and actual out-of-pocket expenses and costs (documented by paid invoices to third parties) in connection with the Property for which this Contract has been terminated, which damages shall not exceed $75,000 per terminated Property. Purchaser may seek specific performance of defaulting Seller’s obligation to deliver the Deed pursuant to this Contract only if, as a condition precedent to initiating such litigation for specific performance, Purchaser first shall (i) not otherwise be in default under this Contract and (ii) file suit therefor with the court on or before the ninetieth (90th) day after the Closing Date. Purchaser agrees that it shall promptly deliver to each Seller an assignment of all of Purchaser’s right, title and interest in and to (together with possession of) all plans, studies, surveys, reports, and other materials paid for with the out-of-pocket expenses reimbursed by Sellers pursuant to the foregoing sentence. SELLERS AND PURCHASER FURTHER AGREE THAT THIS SECTION 10.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, AND SHALL BE PURCHASER’S EXCLUSIVE REMEDY AGAINST SELLERS, BOTH AT LAW AND IN EQUITY ARISING FROM OR RELATED TO A BREACH BY ANY SELLER OF ITS REPRESENTATIONS, WARRANTIES, OR COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES, ALL OF WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLERS FOR ANY BREACH BY A SELLER, OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS OR ITS OBLIGATIONS UNDER THIS CONTRACT. PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR ANY LIEN AGAINST ANY PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS CONTRACT AND HAS FILED AND IS DILIGENTLY PURSUING AN ACTION SEEKING SUCH REMEDY.
