RIGHT UNDER SECTION 13.1.
THE REMEDY SET FORTH
HEREIN SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY FOR BUYER'S WRONGFUL FAILURE
TO CLOSE HEREUNDER AND SELLER EXPRESSLY WAIVES ANY AND ALL OTHER REMEDIES, LEGAL
AND EQUITABLE, THAT IT OTHERWISE MAY HAVE FOR BUYER'S FAILURE TO CLOSE.
(B)
SELLER'S BREACH.
IF CLOSING DOES NOT OCCUR
BECAUSE SELLER WRONGFULLY FAILS TO TENDER PERFORMANCE AT CLOSING OR OTHERWISE
BREACHES THIS AGREEMENT PRIOR TO CLOSING, AND BUYER IS READY TO CLOSE AND IS NOT
IN MATERIAL BREACH OF THIS AGREEMENT, BUYER MAY TERMINATE THIS AGREEMENT, IN
WHICH EVENT SELLER WILL RETURN THE DEPOSIT, TOGETHER WITH INTEREST THEREON, TO
BUYER IMMEDIATELY AFTER THE DETERMINATION THAT THE CLOSING WILL NOT OCCUR.
IF
BUYER ELECTS NOT TO TERMINATE THIS AGREEMENT UPON ANY SUCH BREACH BY SELLER,
BUYER SHALL RETAIN ALL LEGAL REMEDIES FOR SELLER'S BREACH OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE OF THIS AGREEMENT.
SELLER'S
FAILURE TO CLOSE SHALL NOT BE CONSIDERED WRONGFUL IF (I) CONDITIONS TO SELLER'S
CONDITIONS TO CLOSE UNDER ARTICLE 12 ARE NOT SATISFIED THROUGH NO FAULT OF
SELLER AND ARE NOT WAIVED; OR (II) SELLER HAS TERMINATED THIS AGREEMENT AS OF
RIGHT UNDER SECTION 13.1.
38
(C)
TERMINATION PURSUANT TO SECTION 13.1.
IF BUYER
OR SELLER TERMINATES THIS AGREEMENT PURSUANT TO SECTION 13.1 IN THE ABSENCE OF A
BREACH BY THE OTHER PARTY, SELLER SHALL RETURN THE DEPOSIT AND ALL ACCRUED
INTEREST THEREON TO BUYER AND NEITHER BUYER NOR SELLER SHALL HAVE ANY LIABILITY
TO THE OTHER PARTY FOR TERMINATION OF THIS AGREEMENT.
IF BUYER OR SELLER
TERMINATES THIS AGREEMENT PURSUANT TO SECTION 13.1 AND ASSERTS THAT A BREACH OF
THIS AGREEMENT HAS OCCURRED, THE NOTICE OF TERMINATION SHALL INCLUDE A STATEMENT
DESCRIBING THE NATURE OF THE ALLEGED BREACH TOGETHER WITH SUPPORTING
DOCUMENTATION.
(D)
EFFECT OF TERMINATION.
IN THE EVENT OF THE
TERMINATION OF THIS AGREEMENT PURSUANT TO THE PROVISIONS OF THIS ARTICLE 13 OR
ELSEWHERE IN THIS AGREEMENT, THIS AGREEMENT SHALL BECOME VOID AND HAVE NO
FURTHER FORCE AND EFFECT AND, EXCEPT AS PROVIDED IN THIS ARTICLE 13, FOR THE
INDEMNITIES PROVIDED FOR IN SECTIONS 6.2(B) AND 14.3, ANY BREACH OF THIS
AGREEMENT PRIOR TO SUCH TERMINATION AND ANY CONTINUING CONFIDENTIALITY
REQUIREMENT, NEITHER PARTY SHALL HAVE ANY FURTHER RIGHT, DUTY OR LIABILITY TO
THE OTHER HEREUNDER.
UPON TERMINATION, BUYER AGREES TO RETURN TO SELLER OR
DESTROY ALL MATERIALS, DOCUMENTS AND COPIES THEREOF PROVIDED, OBTAINED OR
DISCOVERED IN THE COURSE OF ANY DUE DILIGENCE INVESTIGATIONS OF THE ASSETS.
14.
INDEMNIFICATION.
14.1
INDEMNIFICATION BY SELLER.
UPON CLOSING, SELLER
SHALL TO THE FULLEST EXTENT PERMITTED BY LAW, RELEASE, DEFEND, INDEMNIFY, AND
HOLD HARMLESS BUYER, THE COMPANY, THEIR AFFILIATES, AND EACH OF THEIR RESPECTIVE
OWNERS, PARTNERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
OTHER REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY THE "BUYER GROUP")
FROM AND AGAINST THE FOLLOWING:
(A)
MISREPRESENTATIONS.
ALL CLAIMS, DEMANDS,
LIABILITIES, JUDGMENTS, LOSSES AND REASONABLE COSTS, EXPENSES AND ATTORNEYS'
FEES (INDIVIDUALLY A "LOSS" AND COLLECTIVELY, THE "LOSSES") ARISING FROM THE
BREACH BY SELLER OR THE COMPANY OF ANY REPRESENTATION OR WARRANTY SET FORTH