Section 4975 of the Code. In the event that this
Agreement, or any transaction or other action by Seller in connection herewith,
shall be deemed to violate ERISA or result in an imposition of an excise tax
under Section 4975 of the Code, Seller may immediately terminate this Agreement
(without any liability to Seller) in accordance with, and subject to the terms
and conditions of, Section 9.3 hereof as if such termination arose from a failed
condition under Section 9.3 hereof.
13.DEFAULT AND DAMAGES.
13.1
DEFAULT BY BUYER. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT,
IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF
THE CONDITIONS TO BUYER'S OBLIGATIONS TO CLOSE HAVING BEEN SATISFIED OR WAIVED),
SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL NATURE OF
THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF THE
NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BE IMPRACTICAL OR EXTREMELY
DIFFICULT TO ASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED
UPON THE POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THE CLOSE OF ESCROW
FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND WISHES TO INDUCE SELLER TO WAIVE
OTHER REMEDIES WHICH SELLER MAY HAVE IN THE EVENT OF A BUYER DEFAULT. BUYER AND
SELLER, AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF
THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL
SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT. BUYER AND SELLER HEREBY AGREE THAT
SELLER MAY, IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER
DEFAULT, AS SELLER'S SOLE AND EXCLUSIVE REMEDY AS A RESULT OF BUYER'S DEFAULT,
TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO BUYER AND ESCROW HOLDER, CANCEL
THE ESCROW AND RECEIVE OR RETAIN (IF SELLER ALREADY HOLDS THE DEPOSIT) THE
DEPOSIT AS LIQUIDATED DAMAGES AND ESCROW HOLDER SHALL IMMEDIATELY DELIVER
(UNLESS IT HAS ALREADY DONE SO) THE DEPOSIT TO SELLER SUCH RETENTION OF THE
DEPOSIT BY SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND
SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY. NOTHING IN THIS
SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS' FEES OR
OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 16.5 OR (B) IMPAIR OR LIMIT
THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER
CONTAINED IN SECTIONS 4.3.1 AND 14 HEREOF.
13.2
Default by Seller. If Seller defaults in its obligations pursuant to
this Agreement, Buyer's sole and exclusive remedy shall be to elect one of the
following: (a) to terminate this Agreement, in which event Buyer shall be
entitled to the return by the Escrow Holder to Buyer of the Deposit, and Seller
shall pay to Buyer an amount equal to Buyer's costs and expenses (including
reasonable attorneys' fees and expenses) incurred in connection with Buyer's due
diligence investigations and negotiation and execution of this Agreement, not to
exceed Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00)