the Deposit and neither
party shall be obligated to proceed with the purchase and sale of the Property.
The Deposit constitutes liquidated damages and recourse to the Deposit is,
except for Purchaser's indemnity and confidentiality obligations hereunder,
Sellers' sole and exclusive remedy for Purchaser's failure to perform its
obligation to purchase the Properties or any breach of a representation or
warranty by Purchaser hereunder.
Sellers expressly waive the remedies of
specific performance and additional damages for any default by Purchaser
hereunder.
SELLERS AND PURCHASER ACKNOWLEDGE THAT SELLERS' DAMAGES WOULD BE
DIFFICULT TO DETERMINE, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF
SELLERS' DAMAGES RESULTING FROM A DEFAULT BY PURCHASER IN ITS OBLIGATION TO
PURCHASE THE PROPERTY.
SELLERS AND PURCHASER FURTHER AGREE THAT THIS SECTION
11.1 IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLERS, AND
SHALL BE SELLERS' EXCLUSIVE REMEDY AGAINST PURCHASER, BOTH AT LAW AND IN EQUITY,
ARISING FROM OR RELATED TO A BREACH BY PURCHASER OF ITS OBLIGATION TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN WITH RESPECT TO
PURCHASER'S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER.
11.2.
SELLER DEFAULT.
(A)
SUBJECT TO SECTION 11.2(B), IF A SELLER, PRIOR TO THE
CLOSING, DEFAULTS IN ITS REPRESENTATIONS, WARRANTIES, COVENANTS, OR OBLIGATIONS
UNDER THIS AGREEMENT, INCLUDING TO SELL ITS PROPERTY AS REQUIRED BY THIS
AGREEMENT AND SUCH DEFAULT CONTINUES FOR MORE THAN TEN (10) DAYS AFTER WRITTEN
NOTICE FROM PURCHASER, THEN, AT PURCHASER'S ELECTION, PURCHASER MAY EITHER (I)
IF PURCHASER HAS CLOSED ON THE REMAINING PROPERTIES FOR WHICH THERE HAS BEEN NO
DEFAULT ALLEGED, SEEK SPECIFIC PERFORMANCE OF THE DEFAULTING SELLER'S
OBLIGATIONS PURSUANT TO THIS AGREEMENT (BUT NOT DAMAGES); (II) DIRECT ESCROW
AGENT TO RECORD THE DEEDS FOR THE OTHER PROPERTIES (SO LONG AS SUCH RECORDING
DOES NOT OCCUR PRIOR TO THE CLOSING DATE) UPON DELIVERY TO ESCROW AGENT OF THE
BALANCE OF THE PURCHASE PRICE; OR (III) GIVE A TERMINATION NOTICE TO SELLERS'
REPRESENTATIVE OF PURCHASER'S DECISION TO TERMINATE THIS AGREEMENT FOR THE
PROPERTY FOR WHICH THERE WAS SUCH A DEFAULT, PROCEED TO CLOSING ON THE REMAINING
PROPERTY, AND THE APPLICABLE SELLER SHALL PAY TO PURCHASER AN AMOUNT EQUAL TO
THE APPLICABLE SHARE OF THE DEPOSIT FOR THE TERMINATED PROPERTY, RETURN ON
DEPOSIT ON THE APPLICABLE SHARE AMOUNT AND, IF SELLERS' DEFAULT UNDER THIS
AGREEMENT RESULTED FROM AN INTENTIONAL ACTION OR INACTION OF SELLERS TAKEN IN
BAD FAITH (EXCLUDING ANY ACTION OR INACTION A SELLER REASONABLY TAKES OR REFUSES
TO TAKE IN RESPONSE TO A REQUEST OR REQUIREMENT OF ANY LENDER) THAT CAUSES ONE
(1) OR MORE OF THE CLOSINGS NOT TO OCCUR SOLELY AS A RESULT OF SUCH ACTION OR
INACTION, A TERMINATION FEE OF $8,000,000 (THE "TERMINATION FEE") (PROVIDED
PURCHASER HAS OTHERWISE PERFORMED IT OBLIGATIONS UNDER THIS AGREEMENT WITH
RESPECT TO THE OTHER REMAINING PROPERTY, INCLUDING DELIVERY OF THE PURCHASE
PRICE THEREFOR, AND SELLERS HAVE BEEN AFFORDED NOTICE AND AN OPPORTUNITY TO CURE
AS PROVIDED ABOVE BUT HAVE FAILED TO SO CURE).
THE AMOUNT OF THE TERMINATION
FEE THAT MAY BE COLLECTED BY