THE
SELLER PARTIES TO INCUR LOSSES AND OTHER DAMAGES IN AN AMOUNT THAT WOULD BE
EXTREMELY DIFFICULT TO ASCERTAIN.
3.22.2 THE DEPOSIT BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES WHICH THE
PARTIES ESTIMATE THE SELLER PARTIES WILL SUFFER BY REASON OF THE BUYER'S
WRONGFUL FAILURE TO CLOSE AND IS NOT AN UNREASONABLE AMOUNT OF LIQUIDATED
DAMAGES UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT IS MADE.
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3.22.3 SUCH LIQUIDATED DAMAGES ARE ALSO REASONABLE CONSIDERATION FOR THE
SELLER PARTIES' AGREEMENT TO LIMIT THEIR REMEDIES AGAINST THE BUYER FOR SUCH A
FAILURE TO CLOSE OR TO PERFORM ANY OTHER OBLIGATION REQUIRED OF IT PURSUANT TO
THE TERMS OF THIS AGREEMENT.
3.22.4 THE BUYER HAS FULLY CONSIDERED THE PROVISIONS OF THIS SECTION 3.22
AND HAS CONSULTED WITH ITS LEGAL COUNSEL WITH RESPECT THERETO.
3.22.5 THE FOREGOING SECTIONS SHALL NOT, HOWEVER, (i) APPLY IN THE EVENT
BUYER, OR ANYONE OF THEM, HAS COMMITTED FRAUD, OR (ii) LIMIT THE SELLER PARTIES'
RIGHTS AND REMEDIES TO ENFORCE OBLIGATIONS OF BUYER UNDER SECTIONS 3.1.2, 3.5.1,
3.9 AND/OR 3.25, OR OF THE BUYER AS MAY BE SET FORTH ELSEWHERE IN THIS AGREEMENT
OR IN THE BUYER'S CLOSING DOCUMENTS, PROVIDED THAT IN NO EVENT SHALL THE
AGGREGATE LIABILITY OF THE BUYER TO THE SELLER PARTIES FOR ALL SUCH BREACHES
EXCEED THE ACTUAL DAMAGES INCURRED BY THE SELLER PARTIES FOR OR IN CONNECTION
WITH SUCH BREACH BY THE BUYER.
Any attendance or appearance at Closing by either party shall not nullify or
void this provision for payment of liquidated damages as Seller's sole remedy.
3.23 Recording. Neither this Agreement nor any notice or memorandum hereof
shall be recorded in any public record. A violation of this prohibition shall
constitute a material breach of this Agreement.
3.24 TIME OF THE ESSENCE. TIME IS OF THE ESSENCE OF THIS AGREEMENT, AND OF
EACH COVENANT, AGREEMENT AND CONDITION REPRESENTED HEREOF THAT PROVIDES FOR
NOTICE TO BE GIVEN OR ACTION TAKEN ON A SPECIFIC DATE OR WITHIN A SPECIFIED
PERIOD OF TIME.
3.25 Confidentiality. From and after the Effective Date, the Parties and
each of their respective representatives shall hold in strictest confidence the
terms of this transaction, the contents of all items delivered to Buyer pursuant
to Section 3.1.1, and all data and information obtained with respect to the
Properties, the Seller Parties or the Buyer or their respective businesses,
whether obtained before or after the Effective Date, and shall not disclose the
same to others; provided, however, that it is understood and agreed that each of
the Parties may disclose such data and information to employees, consultants,
accountants, attorneys, existing and potential, members, partners, investors or
lenders of the Parties and as otherwise required to comply with applicable law
or to enforce the terms and provisions of this Agreement. In the event of a
breach or threatened breach by any Party or its respective agents or
representatives of this Section 3.25, the non-defaulting party hereunder shall
be entitled to an injunction restraining the defaulting party hereunder from
disclosing, in