(V)
BY PURCHASER IN ACCORDANCE WITH SECTION 7.21(B);
(VI)
BY MUTUAL AGREEMENT OF SELLER AND PURCHASER;
(VII)
BY SELLER OR PURCHASER IF (A) ALL OF THE ORDERS REFERENCED IN
CLAUSE (VIII) BELOW SHALL HAVE BECOME FINAL ORDERS AND (B) THE CLOSING HAS NOT
OCCURRED ON OR BEFORE THE EARLIER OF SEPTEMBER 1, 2007, OR THE DATE WHICH IS
THIRTY (30) DAYS AFTER THE DATE UPON WHICH THE LAST OF ALL REQUIRED REGULATORY
APPROVALS HAS BEEN RECEIVED, UNLESS SUCH TIME HAS BEEN EXTENDED PURSUANT TO
SECTION 7.21(B);
(VIII)
BY SELLER OR PURCHASER IF ANY OF THE SALE PROCEDURES ORDER, SALE
ORDER, DISCLOSURE STATEMENT ORDER AND CONFIRMATION ORDER HAS NOT BEEN ENTERED OR
BECOME FINAL IN A SEQUENCE SUCH THAT EACH OF THE SAME SHALL BE A FINAL ORDER AT
OR PRIOR TO THE CLOSING DATE BY SEPTEMBER 1, 2007; OR
(IX)
BY SELLER OR PURCHASER IF AT THE TIME THE WRITTEN NOTICE OF
TERMINATION IS GIVEN, THERE IS IN EFFECT A PRELIMINARY OR PERMANENT INJUNCTION
ENJOINING CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(B)
BANKRUPTCY COURT TERMINATION.
THIS AGREEMENT SHALL AUTOMATICALLY
TERMINATE AT ANY TIME PRIOR TO THE CLOSING UPON ENTRY BY THE BANKRUPTCY COURT OF
THE SALE ORDER THAT (I) APPROVES AND CONSUMMATES A THIRD PARTY SALE; AND
(II) BECOMES A FINAL ORDER.
THIS AGREEMENT ALSO SHALL AUTOMATICALLY TERMINATE
AT ANY TIME PRIOR TO THE CLOSING IF THE BANKRUPTCY COURT SHOULD NOT APPROVE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
12.02
SPECIFIC PERFORMANCE.
ANY PARTY DESIRING TO PROCEED WITH THE CLOSING
DESPITE ANY FAILURE OR REFUSAL OF THE OTHER PARTY HERETO TO SO PROCEED SHALL
HAVE THE RIGHT TO PURSUE THE REMEDY OF SPECIFIC PERFORMANCE OR TO SEEK AN
INJUNCTION WITHOUT THE REQUIREMENT OF POSTING ANY BOND.
44
12.03
PURCHASER'S REMEDIES.
IF THIS AGREEMENT IS TERMINATED BY PURCHASER
PURSUANT TO SECTION 12.01(A)(II) BECAUSE OF SELLER'S UNCURED DEFAULT HEREUNDER
THEN, SUBJECT TO THE NEXT SENTENCE, PURCHASER SHALL BE ENTITLED TO RECOVER THE
DOWN PAYMENT AND, SUBJECT TO BANKRUPTCY COURT APPROVAL, DAMAGES EQUAL TO
PURCHASER'S ACTUAL, REASONABLE OUT-OF-POCKET COSTS AND EXPENSES INCURRED IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE COSTS OF
PURCHASER'S CLAIM AGAINST SELLER, INCLUDING BUT NOT LIMITED TO, REASONABLE LEGAL
EXPENSES, PLUS COSTS AND EXPENSES ASSOCIATED WITH PURCHASER'S DUE DILIGENCE
INSPECTION AND REVIEWS, PROVIDED THAT PURCHASER'S TOTAL RECOVERY IN EXCESS OF
THE DOWN PAYMENT SHALL NOT EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000.00).
PRIOR TO PURCHASER'S EXERCISE OF ITS REMEDY PURSUANT TO THE PREVIOUS SENTENCE,
PURCHASER MAY SEEK SPECIFIC PERFORMANCE OF SELLER'S OBLIGATIONS WHICH (IF
AWARDED) WILL BE PURCHASER'S SOLE REMEDY FOR SUCH DEFAULT HEREUNDER.
PURCHASER
WILL HAVE NO OTHER REMEDIES, WHETHER AT LAW OR IN EQUITY, FOR ANY SUCH DEFAULT
BY SELLER HEREUNDER (PROVIDED PURCHASER WILL STILL BE ENTITLED TO THE BENEFIT OF
ANY OBLIGATIONS, COVENANTS AND INDEMNITIES HEREUNDER AND UNDER THE
CONFIDENTIALITY AGREEMENT AND ANY OTHER RELATED AGREEMENTS WHICH EXPRESSLY
SURVIVE THE TERMINATION OF THIS AGREEMENT WITH RESPECT TO ANY OTHER DEFAULTS
THEREUNDER BY SELLER).
PURCHASER MAY ONLY AVAIL ITSELF OF THE REMEDIES IN THIS
SECTION