BREACH BY THE BUYER OF
ONE OR MORE PROVISIONS OF THIS AGREEMENT, IN PARTICULAR THE REPRESENTATIONS AND
WARRANTIES IN ARTICLE VI ABOVE AND (II) BY BUYER IN THE EVENT OF A MATERIAL
BREACH BY EITHER THE SELLER OR THE COMPANY OF ONE OR MORE PROVISIONS OF THIS
AGREEMENT, IN PARTICULAR THE REPRESENTATIONS AND WARRANTIES IN ARTICLES IV AND V
ABOVE;
(D)
BY SELLER OR BUYER IF THE TOTAL AMOUNT OF UNCURED AND UNWAIVED
TITLE DEFECTS AND/OR ENVIRONMENTAL DEFECTS EXCEEDS 10% OF THE BASE PURCHASE
PRICE;
31
11.2
EFFECT OF TERMINATION.
(A)
IN THE EVENT OF TERMINATION OF THIS AGREEMENT BY SELLER PURSUANT
TO SECTION 11.1(C)(I) ABOVE OR IF ALL OTHER CLOSING CONDITIONS HAVE BEEN
SATISFIED (OTHER THAN THOSE THAT CAN ONLY BE SATISFIED AT CLOSING), EXCEPT THAT
THE CONDITION IN SECTION 8.1(F) HAS NOT BEEN SATISFIED, SELLER SHALL BE ENTITLED
TO RETAIN THE DEPOSIT, TOGETHER WITH ANY INTEREST EARNED THEREON. THIS SHALL BE
IN THE NATURE OF LIQUIDATED DAMAGES FOR BUYER'S BREACH, AND NOT A PENALTY. IF
THE CLOSING DOES NOT OCCUR BY JULY 31, 2007 OR IS TERMINATED AS A RESULT OF A
BREACH BY BUYER AS CONTEMPLATED BY SECTION 11.1(C)(I) ABOVE OR IF THE FAILURE TO
CLOSE IS THE RESULT OF THE CONDITION IN SECTION 8.1(F) NOT BEING SATISFIED AS
CONTEMPLATED ABOVE, THE SELLER'S RETENTION OF THE DEPOSIT IS SELLER'S SOLE
REMEDY AGAINST THE BUYER.
HOWEVER, IF THIS AGREEMENT DOES NOT CLOSE ON THE DATE
SPECIFIED ABOVE OR IS TERMINATED DUE THE NEGLIGENCE, FAULT OR WILLFUL FAILURE OF
THE SELLER OR FOR THE REASONS DESCRIBED IN SECTION 11.1(A), (B), (C)(II), OR
(D), THE DEPOSIT, TOGETHER WITH ANY INTEREST EARNED THEREON SHALL BE DELIVERED
TO BUYER.
(B)
IN THE EVENT OF TERMINATION OF THIS AGREEMENT BY ANY PARTY HERETO
AS PROVIDED IN SECTION 11.1, THIS AGREEMENT SHALL FORTHWITH BECOME VOID AND
THERE SHALL BE NO LIABILITY OR OBLIGATION ON THE PART OF ANY PARTY HERETO EXCEPT
(I) UNDER THE CONFIDENTIALITY AGREEMENT, (II) WITH RESPECT TO THIS SECTION 11.2,
THE SECOND AND THIRD SENTENCES OF SECTION 7.6, AND SECTION 14.10, AND (III) TO
THE EXTENT THAT SUCH TERMINATION RESULTS FROM THE WILLFUL BREACH BY A PARTY
HERETO OF ANY OF ITS REPRESENTATIONS AND WARRANTIES OR OF ANY OF ITS COVENANTS
OR AGREEMENTS CONTAINED IN THIS AGREEMENT.
ARTICLE XII
INDEMNIFICATION
12.1
SELLER AND FOC INDEMNIFICATION.
SUBJECT TO THE LIMITATIONS SET
FORTH IN SECTION 12.4 HEREOF, THE SELLER AND FOC HEREBY JOINTLY AND SEVERALLY
AGREE TO INDEMNIFY AND HOLD BUYER AND EACH OF ITS AFFILIATES, AND THE OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS THEREOF, HARMLESS FROM AND AGAINST ANY AND ALL
CLAIMS, JUDGMENTS, CAUSES OF ACTION, LIABILITIES, OBLIGATIONS, GUARANTEES,
DAMAGES, LOSSES, DEFICIENCIES, COSTS, PENALTIES, INTEREST AND EXPENSES,
INCLUDING WITHOUT LIMITATION, COST OF INVESTIGATION AND DEFENSE, AND REASONABLE
ATTORNEYS' FEES AND EXPENSES, NET OF ANY COLLECTED INSURANCE PROCEEDS
(COLLECTIVELY, "LOSSES"), ARISING OUT OF, BASED UPON, ATTRIBUTABLE TO OR
RESULTING FROM ANY, BREACH OF A REPRESENTATION, WARRANTY, AGREEMENT OR COVENANT
OF THE COMPANY OR SELLER CONTAINED IN OR MADE PURSUANT TO THIS AGREEMENT
(WITHOUT