contained herein, the Liability Cap
shall not apply to breaches of Section 11(a)(ii), Section 11(a)(vi) (last
sentence only) and Section 11(a)(x), it being understood and agreed that the
Liability Threshold shall apply to breaches of Section 11(a)(ii),
Section 11(a)(vi) (last sentence only) and Section 11(a)(x).
(b) No Transferor Related Party other than the entity comprising Transferor
shall have any personal liability, directly or indirectly, under or in
connection with this Agreement or any agreement made or entered into under or
pursuant to the provisions of this Agreement, or any amendment or amendments to
any of the foregoing made at any time or times, heretofore or hereafter, and
Transferee, on behalf of itself and its successors and assigns, hereby waives
any and all such personal liability. Notwithstanding the foregoing, Transferor
agrees that (i) it shall not dissolve during the Survival Period (or, if
Transferee asserts a claim against Transferor prior to expiration of the
Survival Period, prior to the resolution of such claim), and (ii) it shall
provide evidence of an agreement executed by the Commingled Pension Trust Fund
(Special Situation Property) of JP Morgan Chase Bank, N.A. in the form attached
hereto as Exhibit G agreeing to cause to be funded to Transferor any amounts
required in order to satisfy any obligations Transferor may have in connection
with this Agreement.
(c) The provisions of this Section 20 shall survive the Closing and/or a
termination of this Agreement.
21. Remedies For Default and Disposition of the Deposit.
(a) TRANSFEROR DEFAULTS. IF THE TRANSACTION SHALL NOT CLOSE ON OR BEFORE
SEPTEMBER 30, 2011 (OR ANY LATER DATE MUTUALLY AGREED TO BY THE PARTIES), BY
REASON OF TRANSFEROR'S BREACH OR DEFAULT UNDER THIS AGREEMENT THAT IS NOT CURED
WITHIN TEN (10) DAYS AFTER RECEIPT OF NOTICE BY TRANSFEROR FROM TRANSFEREE, THEN
TRANSFEREE SHALL HAVE AS ITS EXCLUSIVE REMEDY THE RIGHT TO EITHER (A) TERMINATE
THIS AGREEMENT (IN WHICH EVENT THE DEPOSIT SHALL BE RETURNED TO TRANSFEREE, AND
NEITHER PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE
OTHERS EXCEPT WITH RESPECT TO THOSE PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY
SURVIVE A CLOSING OR TERMINATION OF THIS AGREEMENT), TRANSFEREE HEREBY WAIVING
ANY RIGHT OR CLAIM TO DAMAGES FOR TRANSFEROR'S BREACH IN SUCH INSTANCE OR
(B) SPECIFICALLY ENFORCE TRANSFEROR'S OBLIGATION TO
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TRANSFER THE INTERESTS (BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE
PERMITTED); PROVIDED THAT ANY ACTION BY TRANSFEREE FOR SPECIFIC PERFORMANCE MUST
BE FILED, IF AT ALL, WITHIN SIXTY-FIVE (65) DAYS OF TRANSFEROR'S BREACH OR
DEFAULT, AND THE FAILURE TO FILE WITHIN SUCH PERIOD SHALL CONSTITUTE A WAIVER BY
TRANSFEREE OF SUCH RIGHT AND REMEDY. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, IN THE EVENT OF A MATERIAL BREACH OR DEFAULT BY TRANSFEROR UNDER THIS
AGREEMENT THAT RESULTS IN MONETARY DAMAGES TO TRANSFEREE IN EXCESS OF THE
LIABILITY THRESHOLD, IF TRANSFEREE HAS ELECTED TO TERMINATE THIS AGREEMENT UNDER
SUBSECTION (A) ABOVE, TRANSFEROR SHALL REIMBURSE TRANSFEREE FOR UP TO
$1,492,815.83 (MEASURED FROM THE FIRST DOLLAR OF DAMAGES) OF TRANSFEREE'S
OUT-OF-POCKET