12.03 IF, AT THE TIME OF SELLER'S DEFAULT, SELLER WOULD NOT BE PERMITTED
(WHETHER AT SUCH TIME OR AS OF THE EXPIRATION OF ANY APPLICABLE CURE PERIOD) TO
TERMINATE THIS AGREEMENT PURSUANT TO SECTION 12.01(A)(I).
12.04
SELLER'S REMEDIES.
IF THE PURCHASE OF THE MEMBERSHIP INTEREST IS NOT
CONSUMMATED IN ACCORDANCE WITH THIS AGREEMENT BY THE DATE SET FORTH IN
SECTION 12.01(A)(VII) BECAUSE OF PURCHASER'S DEFAULT HEREUNDER, OR IF SELLER
TERMINATES THIS AGREEMENT IN ACCORDANCE WITH SECTION 12.01(A)(I), THEN SELLER
WILL HAVE THE RIGHT TO PURSUE THE REMEDY OF SPECIFIC PERFORMANCE UNDER SECTION
12.02 HEREIN WHICH, IF AWARDED, WILL BE SELLER'S SOLE REMEDY FOR SUCH DEFAULT.
IF SELLER DOES NOT SEEK THE REMEDY OF SPECIFIC PERFORMANCE FOR SUCH DEFAULT,
THEN SELLER WILL, AS ITS SOLE REMEDY, HAVE THE RIGHT TO RETAIN THE DOWN PAYMENT
AS LIQUIDATED DAMAGES, AND NO OTHER REMEDY, WHETHER AT LAW OR IN EQUITY, FOR THE
FAILURE TO CLOSE BY PURCHASER HEREUNDER; PROVIDED, HOWEVER, THAT SELLER WILL
STILL BE ENTITLED TO RECEIVE ANY COSTS AND EXPENSES DUE TO SELLER PURSUANT TO
THIS AGREEMENT AND THE BENEFIT OF ANY OBLIGATIONS, COVENANTS AND INDEMNITIES
HEREUNDER AND UNDER THE CONFIDENTIALITY AGREEMENT BY PURCHASER WHICH EXPRESSLY
SURVIVE THE TERMINATION OF THIS AGREEMENT WITH RESPECT TO ANY OTHER DEFAULTS
THEREUNDER BY PURCHASER.
SELLER MAY ONLY AVAIL ITSELF OF THE REMEDY IN THIS
SECTION 12.04 IF, AT THE TIME OF PURCHASER'S DEFAULT, SELLER IS NOT IN MATERIAL
DEFAULT HEREUNDER.
THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER'S
ACTUAL DAMAGES WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND
THAT THE DOWN PAYMENT REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH
DAMAGES.
SUCH LIQUIDATED DAMAGES ARE NOT INTENDED AS A FORFEITURE OR PENALTY.
12.05
EFFECT OF TERMINATION.
EXCEPT AS SET FORTH IN SECTION 12.03 ABOVE, ANY
TERMINATION OF THIS AGREEMENT BY ANY PARTY SHALL HAVE THE EFFECT OF CAUSING THIS
AGREEMENT TO THEREUPON BECOME VOID AND OF NO FURTHER FORCE OR EFFECT WHATSOEVER,
AND THEREUPON NO PARTY WILL HAVE ANY RIGHTS, DUTIES, LIABILITIES OR OBLIGATIONS
OF ANY KIND OR NATURE WHATSOEVER AGAINST ANY OTHER PARTY HERETO BASED UPON
EITHER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT IN EACH
CASE THE OBLIGATIONS OF EACH PARTY FOR ITS OWN EXPENSES INCURRED IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AS PROVIDED IN SECTION
13.04 AND THE OBLIGATIONS OF EACH PARTY WITH RESPECT TO CONFIDENTIALITY SET
FORTH IN SECTION 7.02 HEREOF AND THE CONFIDENTIALITY AGREEMENT.
45
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.01
COMMISSIONS AND FINDERS' FEES.
EACH OF THE PARTIES REPRESENTS THAT THE
NEGOTIATIONS RELATIVE TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY
HAVE BEEN CARRIED ON BY SELLER DIRECTLY WITH PURCHASER IN SUCH MANNER AS NOT TO
GIVE RISE TO ANY CLAIMS AGAINST ANY OF THE PARTIES HERETO FOR A BROKERAGE
COMMISSION, FINDERS' FEE OR OTHER LIKE PAYMENT.
INSOFAR AS ANY SUCH CLAIMS ARE
MADE WHICH ARE ALLEGED TO BE BASED ON AN AGREEMENT OR ARRANGEMENTS MADE BY, OR
ON BEHALF OF, A PARTY, SUCH PARTY AGREES TO INDEMNIFY AND HOLD THE OTHER PARTY
HARMLESS FROM