their right to enforce the
Inspection Agreement, the Confidentiality Agreement and the provisions of
Section 8.6 which expressly survive a termination of this Agreement, and (B) all
other rights and obligations of Sellers and Purchaser hereunder (except those
referenced in clause (A)) shall terminate immediately; or (y) to waive such
matter or condition and proceed to Closing.
(b)
IF SELLERS TERMINATE THIS AGREEMENT AS PROVIDED IN CLAUSE (x) OF
SECTION 10.2(a) AND RECEIVE THE DEPOSIT (PRO RATA BASED ON THEIR PERCENTAGE
SHARE), THE PARTIES ACKNOWLEDGE AND AGREE BY INITIALING THIS SECTION 10.2(b)
THAT: (I) IN THE EVENT OF SUCH A DEFAULT, SELLERS WILL INCUR CERTAIN COSTS AND
OTHER DAMAGES IN AN AMOUNT THAT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO
ASCERTAIN; AND (II) THE DEPOSIT, TOGETHER WITH ALL INTEREST EARNED THEREON,
BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE
SUFFERED BY SELLERS BY REASON OF SUCH A DEFAULT, AND THE DEPOSIT AND INTEREST IS
NOT AN AMOUNT WHICH IS UNREASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE TIME
THIS AGREEMENT IS MADE (PURCHASER ACKNOWLEDGING AND AGREEING THAT PURCHASER HAS
FULLY CONSIDERED THE PROVISIONS OF THIS SECTION 10.2(b) AND SUCH CIRCUMSTANCES
PRIOR TO ENTERING INTO THIS AGREEMENT AND HAS CONSULTED WITH PURCHASER'S COUNSEL
WITH RESPECT THERETO); AND (III) UPON DELIVERY TO ESCROW AGENT BY SELLERS'
REPRESENTATIVE OF WRITTEN NOTICE OF THEIR ELECTION TO TERMINATE THIS AGREEMENT
AS PROVIDED IN CLAUSE (i) OF SECTION 10.2(a) SELLERS SHALL BE ENTITLED TO
RECEIVE AND RETAIN THE DEPOSIT (PRO RATA BASED UPON THEIR PERCENTAGE SHARE),
TOGETHER WITH ALL INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES, AND PURCHASER
SHALL FORTHWITH INSTRUCT ESCROW AGENT TO RELEASE THE DEPOSIT AND ALL INTEREST
EARNED THEREON TO SELLERS AND TO RETURN TO SELLERS ALL DOCUMENTS AND INSTRUMENTS
THERETOFORE DEPOSITED INTO THE ESCROW BY OR ON BEHALF OF THEM; PROVIDED,
HOWEVER, THAT THE
50
DEPOSIT SHALL BE IN ADDITION TO AND NOT IN LIEU OF ANY AMOUNTS OWED TO SELLERS
BY PURCHASER AS A RESULT OF INDEMNITIES AND OTHER PROVISIONS OF THIS AGREEMENT
WHICH EXPRESSLY SURVIVE ITS TERMINATION; AND PROVIDED FURTHER, THAT SELLERS
SHALL BE ENTITLED TO RECOVER FROM PURCHASER ATTORNEYS' FEES AND OTHER
OUT-OF-POCKET COSTS INCURRED BY THEM IN CONNECTION WITH THE ENFORCEMENT OR
DEFENSE OF OBLIGATIONS CONTAINED IN THIS SECTION 10.2.
IN FURTHER EVIDENCE OF THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES PROVISION,
SELLERS AND PURCHASER HAVE INITIALED BELOW:
SELLERS:__________
PURCHASER:____________
10.3
Surviving Claims. Any claim for any breach or inaccuracy of a
representation or warranty made or contained (or deemed contained) in
Articles III or IV for which Section 10.1 expressly provides that this
Section 10.3 shall govern, or which is discovered after Closing, shall survive
Closing for twelve (12) months as to the representations and warranties made and
contained (or deemed contained) in Articles III and IV, after which such
representations and warranties shall merge into the Closing Documents
(collectively, the "Surviving Representations"), except to the extent that any
such breach or inaccuracy has otherwise been waived pursuant to Section 6.5,
Section 10.1 or