AGGREGATE BASIS SEVENTY-FIVE THOUSAND UNITED
STATES DOLLARS ($75,000) (THE "DEDUCTIBLE"), IN WHICH EVENT THE BUYER
INDEMNITEES SHALL BE ENTITLED TO CLAIM INDEMNITY ONLY TO THE EXTENT OF SUCH
EXCESS.
(2)
THE BUYER SHALL HAVE NO OBLIGATION TO INDEMNIFY A COMPANY
INDEMNITEE PURSUANT TO SECTION 7(K)(II) WITH RESPECT TO COMPANY INDEMNIFIED
LIABILITIES, UNLESS THE AGGREGATE AMOUNT OF ALL SUCH COMPANY INDEMNIFIED
LIABILITIES FOR WHICH THE BUYER WOULD, BUT FOR THIS SECTION 7(K)(III)(2), BE
LIABLE THEREUNDER EXCEEDS ON AN AGGREGATE BASIS THE DEDUCTIBLE, IN WHICH EVENT
THE COMPANY INDEMNITEES SHALL BE ENTITLED TO CLAIM INDEMNITY ONLY TO THE EXTENT
OF SUCH EXCESS.
(3)
EXCEPT FOR CASES OF FRAUD OR WILLFUL MISCONDUCT,
NOTWITHSTANDING ANYTHING ELSE HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE
TOTAL AGGREGATE LIABILITY OF EITHER OF THE COMPANY OR THE BUYER, CALCULATED
INDIVIDUALLY, EXCEED THE PURCHASE PRICE.
34
(L)
NO STRICT CONSTRUCTION. THE LANGUAGE USED IN THIS AGREEMENT
WILL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL
INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
(M)
REMEDIES. EACH PARTY SHALL HAVE ALL RIGHTS AND REMEDIES SET
FORTH IN THE TRANSACTION DOCUMENTS AND ALL RIGHTS AND REMEDIES WHICH SUCH
PERSONS HAVE BEEN GRANTED AT ANY TIME UNDER ANY OTHER AGREEMENT OR CONTRACT AND
ALL OF THE RIGHTS WHICH SUCH PERSONS HAVE UNDER ANY LAW. ANY PERSON HAVING ANY
RIGHTS UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE ENTITLED TO ENFORCE SUCH
RIGHTS SPECIFICALLY (WITHOUT POSTING A BOND OR OTHER SECURITY), TO RECOVER
DAMAGES BY REASON OF ANY BREACH OF ANY PROVISION OF THIS AGREEMENT AND TO
EXERCISE ALL OTHER RIGHTS GRANTED BY LAW. FURTHERMORE, EACH PARTY RECOGNIZES
THAT IN THE EVENT THAT IT FAILS TO PERFORM, OBSERVE, OR DISCHARGE, OR THREATENS
TO BREACH, ANY OR ALL OF ITS OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS, ANY
REMEDY AT LAW MAY PROVE TO BE INADEQUATE RELIEF TO THE OTHER APPLICABLE PARTY.
EACH PARTY THEREFORE AGREES THAT THE OTHER PARTY SHALL BE ENTITLED TO TEMPORARY
AND PERMANENT INJUNCTIVE RELIEF IN ANY SUCH CASE WITHOUT THE NECESSITY OF
PROVING ACTUAL DAMAGES AND WITHOUT POSTING A BOND OR OTHER SECURITY.
(N)
RESCISSION AND WITHDRAWAL RIGHT. NOTWITHSTANDING ANYTHING TO
THE CONTRARY CONTAINED IN (AND WITHOUT LIMITING ANY SIMILAR PROVISIONS OF) THE
TRANSACTION DOCUMENTS, WHENEVER THE BUYER EXERCISES A RIGHT, ELECTION, DEMAND OR
OPTION UNDER A TRANSACTION DOCUMENT AND THE COMPANY DOES NOT TIMELY PERFORM ITS
RELATED OBLIGATIONS WITHIN THE PERIODS THEREIN PROVIDED, THEN THE BUYER MAY
RESCIND OR WITHDRAW, IN ITS SOLE DISCRETION FROM TIME TO TIME UPON WRITTEN
NOTICE TO THE COMPANY, ANY RELEVANT NOTICE, DEMAND OR ELECTION IN WHOLE OR IN
PART WITHOUT PREJUDICE TO ITS FUTURE ACTIONS AND RIGHTS.
(O)
PAYMENT SET ASIDE. TO THE EXTENT THAT THE COMPANY MAKES A
PAYMENT OR PAYMENTS TO THE BUYER HEREUNDER OR PURSUANT TO ANY OF THE OTHER
TRANSACTION DOCUMENTS OR THE BUYER ENFORCES OR EXERCISES ITS RIGHTS HEREUNDER OR
THEREUNDER, AND SUCH PAYMENT OR PAYMENTS OR THE PROCEEDS OF SUCH ENFORCEMENT OR
EXERCISE OR