PURCHASER (OR
PURCHASER'S PERMITTED DESIGNEE) EITHER PRIOR TO THE CLOSING OR WITHIN ONE (1)
YEAR AFTER THE CLOSING, AS MEMBERS OF NEWCO, REASONABLY AND JOINTLY DETERMINE
THAT THE MANNER IN WHICH ELECTRICAL EXPENSES ARE CHARGED TO TENANTS AT THE
SHOPPING CENTER KNOWN AS LAKEFOREST SHOULD BE DISCONTINUED BASED UPON SUCH
PARTIES' DETERMINATION THAT SUCH DISCONTINUATION IS IN THE BEST INTERESTS IF
NEWCO, THEN PURCHASER SHALL BE DEEMED TO HAVE SUFFERED A LOSS OF $2,000,000
WHICH LOSS SHALL BE DEEMED A PRE-CLOSING LOSS IF DETERMINED PRIOR TO THE CLOSING
OR A LOSS ARISING FROM A SELLER BREACH AFTER THE CLOSING AND SHALL REDUCE THE
PRE-CLOSING THRESHOLD AMOUNT OR POST-CLOSING THRESHOLD AMOUNT, AS APPLICABLE,
AND SHALL BE COUNTED TOWARDS THE $10,000,000 CAP SET FORTH IN SECTION 9.3
HEREOF.
ARTICLE X
TERMINATION
10.1
PURCHASER DEFAULT.
IF AT CLOSING (I) SELLER IS
READY, WILLING AND ABLE TO CONVEY THE PROPERTY TO PURCHASER IN ACCORDANCE WITH
THE TERMS HEREOF AND PURCHASER DOES NOT MAKE THE PURCHASER CONTRIBUTION IN
ACCORDANCE WITH THE TERMS HEREOF OR FAILS TO EXECUTE AND DELIVER TO SELLER ANY
REQUIRED CLOSING DOCUMENT OR OTHER DELIVERY TO SELLER OR ANY OTHER PARTY
REQUIRED
59
hereunder or (ii) Purchaser takes any actions (or fails to take any action it is
obligated to take) that materially and adversely affect Seller's benefits of
this transaction or Seller's ability to fulfill an obligation required to be
fulfilled by Seller prior to Closing, then Purchaser shall be deemed in material
default hereunder and Seller's sole and exclusive remedy at law or in equity
will be to terminate this Agreement and all related agreements, and thereafter
no party to this Agreement will have any further rights or obligations hereunder
other than any arising under any section herein that by its terms survives the
termination of this Agreement, and upon such termination Seller shall be
entitled to collect the Deposit as full and complete liquidated damages for such
default, it being agreed between the parties that the actual damages to Seller
in the event of such default are impractical if not impossible to determine and
that the Deposit is a reasonable estimate thereof.
10.2
SELLER DEFAULT.
IN THE EVENT THE MAKING OF THE
PURCHASER CONTRIBUTION, THE CASH CONSIDERATION AND THE SELLER TRANSFERS AS
CONTEMPLATED BY THIS AGREEMENT IS NOT CONSUMMATED AS A RESULT OF SELLER'S
FAILURE TO SATISFY ITS OBLIGATIONS AND CLOSING CONDITIONS HEREUNDER WHICH IS NOT
THE RESULT OF A GOOD FAITH AND BONA FIDE INABILITY OF SELLER TO PERFORM SUCH
OBLIGATIONS AND CONDITIONS USING COMMERCIALLY REASONABLE EFFORTS, THEN
PURCHASER'S SOLE AND EXCLUSIVE REMEDIES SHALL BE (I) TO PROCEED TO CLOSING AND
WAIVE AND FORFEIT SUCH CLAIM FOR FAILURE TO PERFORM OR SATISFY THE APPLICABLE
OBLIGATIONS OR CONDITIONS OR (II) TO TERMINATE THIS AGREEMENT BY WRITTEN NOTICE
TO SELLER, IN WHICH EVENT (I) THE DEPOSIT SHALL BE DELIVERED TO PURCHASER AND
(II) SELLERS SHALL PAY TO PURCHASER AN ADDITIONAL TWENTY MILLION DOLLARS
($20,000,000) WITHIN THREE (3) BUSINESS DAYS FROM THE DATE OF PURCHASER'S NOTICE
OF TERMINATION, WHICH PAYMENT