the contrary herein, (i) Seller shall in no
event be liable to Buyer for any such claim unless and until the aggregate
amount of Buyer's actual out-of-pocket losses from all such valid claims exceeds
$150,000, and (ii) in no event shall the aggregate amount of Seller's liability
exceed five percent of the Purchase Price. The limitations in clauses (i) and
(ii) of this Section 20.3 are in addition to, and not in derogation of, the
limitations in Section 5.4.3 with respect to Seller's liability for breaches of
its representations and warranties. The limitations in this Section 20.3 shall
not apply to the Seller's liability under Section 11.
21. LIQUIDATED DAMAGES AND LIMITATIONS OF REMEDIES FOR BUYER'S BREACH. If
Buyer in breach of this agreement fails to close, then upon written notice of
termination (a "Termination Notice") from Seller to Buyer and escrow agent, this
agreement shall terminate (except for this section and buyer's obligations
pursuant to Sections 4.7, 17.2 and 17.9). The parties acknowledge and agree by
initialing this Section 21 that:
21.1 IF BUYER FAILS TO CLOSE IN BREACH OF THIS AGREEMENT, SELLER WILL
INCUR CERTAIN COSTS AND OTHER DAMAGES IN AN AMOUNT THAT WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO ASCERTAIN.
21.2 THE DEPOSIT, TOGETHER WITH ALL INTEREST EARNED THEREON, BEARS A
REASONABLE RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE
SUFFERED BY SELLER BY REASON OF SUCH A FAILURE OF CLOSING TO OCCUR, AND THE
DEPOSIT AND INTEREST IS NOT AN AMOUNT WHICH IS UNREASONABLE UNDER THE
CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT IS MADE (BUYER ACKNOWLEDGING
AND AGREEING THAT BUYER HAS FULLY CONSIDERED THE PROVISIONS OF THIS SECTION 21
AND SUCH CIRCUMSTANCES PRIOR TO ENTERING INTO THIS AGREEMENT AND HAS CONSULTED
WITH BUYER'S COUNSEL WITH RESPECT THERETO).
21.3 UPON DELIVERY TO ESCROW AGENT BY SELLER OF A PROPERLY GIVEN
TERMINATION NOTICE, SELLER SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT,
TOGETHER WITH ALL INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES, WHICH DAMAGES
SHALL BE SELLER'S SOLE REMEDY HEREUNDER IF BUYER IN BREACH OF THIS AGREEMENT
FAILS TO CLOSE, AND BUYER SHALL FORTHWITH INSTRUCT ESCROW AGENT TO RELEASE THE
DEPOSIT AND ALL INTEREST EARNED THEREON TO SELLER AND TO RETURN TO SELLER ALL
DOCUMENTS AND INSTRUMENTS THERETOFORE DEPOSITED
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INTO THE ESCROW BY OR ON BEHALF OF THEM; PROVIDED, HOWEVER, THAT THE DEPOSIT
SHALL BE IN ADDITION TO AND NOT IN LIEU OF ANY AMOUNTS OWED TO SELLER BY BUYER
AS A RESULT OF BUYER'S OBLIGATIONS PURSUANT TO SECTIONS 4.7, 17.2 AND 17.9; AND
PROVIDED FURTHER THAT SELLER SHALL BE ENTITLED TO RECOVER FROM BUYER ATTORNEYS'
FEES AND OTHER DIRECT OUT OF POCKET COSTS INCURRED BY THEM IN CONNECTION WITH
THE ENFORCEMENT OR DEFENSE OF OBLIGATIONS CONTAINED IN THIS SECTION 21.
IN FURTHER EVIDENCE OF THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES
PROVISION, SELLER AND BUYER HAVE INITIALED BELOW:
SELLER:___KO/SP_______
BUYER:__T.C.F._____
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
and delivered, each