OR (B) THE 4807 AGREEMENT, OR THAT CERTAIN PURCHASE AGREEMENT FOR
THE SALE OF CERTAIN ASSETS OF THE
41
MARK WINKLER COMPANY FROM AFFILIATES OF SELLERS TO BUYER OR ITS AFFILIATE (THE
"COMPANY AGREEMENT," AND, TOGETHER WITH THE 4807 AGREEMENT, THE "RELATED
PURCHASE AGREEMENTS"), BUYER AND SELLERS AGREE THAT THE ACTUAL DAMAGES THAT ANY
SELLER SHALL SUSTAIN AS A RESULT THEREOF SHALL BE SUBSTANTIAL AND SHALL BE
EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE.
BUYER AND SELLERS THEREFORE
AGREE THAT IF BUYER FAILS TO PERFORM ANY OR ALL OF THE TERMS, COVENANTS,
CONDITIONS AND AGREEMENTS TO BE PERFORMED BY BUYER HEREUNDER OR UNDER THE
RELATED PURCHASE AGREEMENTS, WHETHER AT OR PRIOR TO THE CLOSING,
THEN, SUBJECT
TO THE PROVISIONS SET FORTH IN SECTION 14.3, SELLERS' SOLE AND EXCLUSIVE REMEDY
SHALL BE (I) THAT (X) THE SELLER OF THE PROPERTY AS TO WHICH BUYER HAS BREACHED
ITS OBLIGATION MAY ELECT TO TERMINATE THIS AGREEMENT WITH RESPECT TO SUCH
INDIVIDUAL PROPERTY OR (Y) THE SELLERS OF THE PROPERTIES WITHIN THE PORTFOLIO IN
WHICH SUCH INDIVIDUAL PROPERTY IS LOCATED SHALL BE ENTITLED TO TERMINATE THIS
AGREEMENT WITH RESPECT TO ALL PROPERTIES WITHIN THE PORTFOLIO, AND TO RECEIVE
FROM ESCROW HOLDER, AS FULL, COMPLETE AND VALID LIQUIDATED DAMAGES (AND NOT AS A
PENALTY) THE PORTION OF THE DEPOSIT RELATING TO SUCH INDIVIDUAL PROPERTY OR
PORTFOLIO AS SHOWN ON SCHEDULE 2.1(A), OR (II) ALL OF THE SELLERS MAY TERMINATE
THIS AGREEMENT WITH RESPECT TO ALL OF THE PROPERTIES AND RECEIVE FROM ESCROW
HOLDER, AS FULL, COMPLETE AND VALID LIQUIDATED DAMAGES (AND NOT A PENALTY) THE
ENTIRE DEPOSIT (INCLUDING THE ADDITIONAL DEPOSIT, IF REQUIRED TO BE DEPOSITED AT
SUCH TIME, WHETHER OR NOT THE SAME ACTUALLY HAS BEEN POSTED BY BUYER),
TOGETHER
WITH ANY INTEREST EARNED THEREON FROM THE ESCROW HOLDER, AND THEREAFTER NEITHER
BUYER NOR ANY SELLER SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION TO THE OTHER
PARTIES HEREUNDER, EXCEPT FOR SUCH INDEMNITIES, LIABILITIES AND OBLIGATIONS AS
ARE EXPRESSLY STATED TO SURVIVE THE TERMINATION OF THIS AGREEMENT.
IN THE EVENT
BUYER DEFAULTS IN ITS OBLIGATIONS UNDER THIS AGREEMENT AFTER THE ADDITIONAL
DEPOSIT IS REQUIRED TO BE POSTED (BUT PRIOR TO ACTUALLY POSTING THE ADDITIONAL
DEPOSIT), BUYER SHALL BE OBLIGATED TO POST SUCH ADDITIONAL DEPOSIT IMMEDIATELY
UPON RECEIVING WRITTEN NOTICE OF ITS DEFAULT FROM A SELLER, AND EACH SUCH SELLER
SHALL BE ENTITLED TO BRING AN ACTION TO COLLECT SUCH ADDITIONAL DEPOSIT FROM
BUYER TO WHICH SUCH SELLER IS ENTITLED.
SECTION 14.2.
SELLER PRE-CLOSING DEFAULTS.
(A)
IN THE EVENT THAT ANY SELLER HAS DEFAULTED IN ANY MATERIAL RESPECT UNDER
THIS AGREEMENT WITH RESPECT TO ITS OBLIGATIONS HEREUNDER (A "DEFAULTING
SELLER"), AND PROVIDED THAT BUYER WAS NOT IN BREACH IN ANY MATERIAL RESPECT OF
THIS AGREEMENT, THEN, SUBJECT TO THE PROVISIONS SET FORTH IN SECTION 14.3, BUYER
SHALL BE ENTITLED, AS ITS SOLE AND EXCLUSIVE REMEDY, AND BUYER HEREBY WAIVES ITS
RIGHT TO PURSUE ANY OTHER REMEDY AT LAW OR IN EQUITY, TO EITHER:
(I) TREAT THIS
AGREEMENT AS BEING IN FULL FORCE AND EFFECT AND PURSUE