BENEFITS AGREED BY THE
PARTIES) PLUS (II) THE AGGREGATE AMOUNT OF THE ENVIRONMENTAL DEFECT VALUES
AGREED BY THE PARTIES OR OTHERWISE FINALLY DETERMINED PURSUANT TO THIS AGREEMENT
WITH RESPECT TO ALL ENVIRONMENTAL DEFECTS, EXCEEDS TEN PERCENT (10%) PERCENT OF
THE PURCHASE PRICE;
(G)
BY BUYER IN ACCORDANCE WITH SECTION 13.04(C); OR
(H)
AS OTHERWISE PROVIDED HEREIN;
provided, however, that no Party shall have the right to terminate this
Agreement pursuant to clause (b) or (c) above if such Party is at such time in
material breach of any provision of this Agreement.
SECTION 11.02
EFFECT OF TERMINATION. IN THE EVENT THAT THE CLOSING DOES
NOT OCCUR AS A RESULT OF ANY PARTY EXERCISING ITS RIGHT TO TERMINATE PURSUANT TO
SECTION 11.01, THEN EXCEPT AS SET FORTH IN SECTION 11.03, THIS AGREEMENT SHALL
BE NULL AND VOID AND NO PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS UNDER
THIS AGREEMENT, EXCEPT THAT NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM ANY
LIABILITY FOR ANY BREACH HEREOF OR ANY LIABILITY THAT HAS ACCRUED PRIOR TO THE
DATE OF SUCH TERMINATION.
SECTION 11.03
TERMINATION DAMAGES.
(A)
IF ALL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER SET FORTH
IN ARTICLE VIII HAVE BEEN MET AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT ARE NOT CONSUMMATED ON THE CLOSING DATE BECAUSE OF THE FAILURE OF
BUYER TO PERFORM ANY OF ITS MATERIAL OBLIGATIONS HEREUNDER OR THE BREACH OF ANY
REPRESENTATION HEREIN BY BUYER, THEN IN SUCH EVENT, SELLERS SHALL HAVE THE
OPTION TO TERMINATE THIS AGREEMENT, IN WHICH CASE SELLERS SHALL RETAIN THE
DEPOSIT AS LIQUIDATED DAMAGES ON ACCOUNT OF BUYER'S FAILURE TO PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT OR BUYER'S BREACH OF ANY REPRESENTATION UNDER
THIS AGREEMENT, WHICH REMEDY SHALL BE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO
SELLERS FOR BUYER'S FAILURE TO PERFORM OR BREACH. BUYER AND SELLERS ACKNOWLEDGE
AND AGREE THAT (I) SELLERS' ACTUAL DAMAGES UPON THE EVENT OF SUCH A TERMINATION
ARE DIFFICULT TO ASCERTAIN WITH ANY CERTAINTY, (II) THAT THE DEPOSIT IS A
REASONABLE ESTIMATE OF SUCH ACTUAL DAMAGES AND (III) SUCH LIQUIDATED DAMAGES DO
NOT CONSTITUTE A PENALTY.
(B)
IF THIS AGREEMENT IS TERMINATED BY THE MUTUAL WRITTEN AGREEMENT OF
BUYER AND SELLERS, OR IF THE CLOSING DOES NOT OCCUR ON OR BEFORE THE CLOSING
DATE, FOR ANY REASON OTHER THAN AS SET FORTH IN THIS SECTION, THEN SELLERS SHALL
RETURN THE DEPOSIT WITH COMPUTED INTEREST TO BUYER IN IMMEDIATELY AVAILABLE
FUNDS WITHIN THREE (3) BUSINESS DAYS AFTER THE EVENT GIVING RISE
21
TO SUCH PAYMENT TO BUYER. BUYER AND SELLERS SHALL THEREUPON HAVE THE RIGHTS AND
OBLIGATIONS SET FORTH ELSEWHERE HEREIN.
SECTION 11.04
ATTORNEYS' FEES, ETC. IF EITHER PARTY TO THIS AGREEMENT
RESORTS TO LEGAL PROCEEDINGS TO ENFORCE THIS AGREEMENT, THE PREVAILING PARTY IN
SUCH PROCEEDINGS SHALL BE ENTITLED TO RECOVER ALL COSTS INCURRED BY SUCH PARTY,
INCLUDING REASONABLE ATTORNEYS' FEES, IN ADDITION TO ANY OTHER RELIEF TO WHICH
SUCH PARTY MAY BE ENTITLED. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE