Common use of Liabilities Upon Abandonment Clause in Contracts

Liabilities Upon Abandonment. In the event this Agreement is terminated pursuant to Section 10.2 above, no party hereto shall have any liability to any other party for costs, expenses, damages, loss of anticipated profits or otherwise, unless the termination occurs because of any misrepresentation or breach of warranty by such party or the failure of performance of, or compliance with, any covenant or agreement contained in this Agreement by such party; provided, that if Sellers terminate this Agreement pursuant to Section 10.2(b) because Buyer has not delivered the Purchase Price at Closing or has otherwise breached any of its material obligations under this Agreement or if Buyer terminates this Agreement pursuant to Section 10.2(c) because Sellers have not delivered the Assets at Closing or have otherwise breached their material obligations under this Agreement, then Buyer or Sellers, as the case may be, shall pay the other party on demand an amount equal to ten percent (10%) of the Base Purchase Price by wire transfer of immediately available funds, and such payment shall constitute liquidated damages and the sole remedy of Sellers or Buyer, as the case may be, under this Agreement. The party that has failed to perform acknowledges and agrees that the other party’s recovery of such amount shall constitute payment of liquidated damages and not a penalty and that such liquidated damages amount is reasonable in light of the substantial but indeterminate harm anticipated to be caused by the party that has failed to perform its obligations under this Agreement, the difficulty of proof of loss and damages, the inconvenience and non-feasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder.