CASE WHICH BREACH OR VIOLATION WOULD GIVE RISE, OR COULD
39
REASONABLY BE EXPECTED TO GIVE RISE, TO A FAILURE OF A CONDITION PRECEDENT TO
THE SELLER'S OBLIGATIONS SET FORTH IN SECTION 3.02 AND 3.04.
8.02
EFFECT OF TERMINATION.
IF THIS AGREEMENT IS
TERMINATED PURSUANT TO SECTION 8.01, THIS AGREEMENT WILL FORTHWITH BECOME NULL
AND VOID AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE ABANDONED WITHOUT
FURTHER ACTION BY THE PARTIES HERETO AND EXCEPT AS OTHERWISE PROVIDED IN
SECTIONS 8.03 AND 8.04 BELOW, (I) THERE WILL BE NO LIABILITY OR OBLIGATION ON
THE PART OF SELLER OR PURCHASER (OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES OR AFFILIATES) INCLUDING WITH RESPECT
TO ARTICLE VI AND (II) THE DEPOSIT SHALL BE RETURNED TO PURCHASER; PROVIDED,
THAT THIS SECTION 8.02, SECTIONS 3.08, 7.06(E) AND 7.09 AND ARTICLES I AND IX OF
THIS AGREEMENT SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT AND REMAIN IN
FULL FORCE AND EFFECT.
8.03
SELLER DEFAULT.
IF THE CLOSING SHALL NOT HAVE
OCCURRED AS A RESULT OF THE TERMINATION OF THE AGREEMENT BY THE PURCHASER
PURSUANT TO SECTION 8.01(E) ABOVE, THEN PURCHASER WILL BE ENTITLED TO THE RETURN
OF THE DEPOSIT AND IN ADDITION SHALL RECEIVE, AS ITS SOLE AND EXCLUSIVE REMEDY,
EITHER (I) ANY AND ALL OF ITS REASONABLE OUT-OF-POCKET COSTS AND EXPENSES
INCURRED IN CONNECTION WITH THE NEGOTIATION OF, AND ATTEMPTED CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED BY, THIS AGREEMENT OR (II) SPECIFIC PERFORMANCE OF
THIS AGREEMENT.
THE SELLER ACKNOWLEDGES AND AGREES THAT PURCHASER WOULD BE
DAMAGED IRREPARABLY IN THE EVENT ANY OF THE PROVISIONS OF THIS AGREEMENT ARE NOT
PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR OTHERWISE ARE BREACHED OR
VIOLATED. ACCORDINGLY, THE SELLER AGREES THAT, WITHOUT POSTING BOND OR OTHER
UNDERTAKING, THE PURCHASER WILL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO
PREVENT BREACHES OR VIOLATIONS OF THE PROVISIONS OF THIS AGREEMENT AND TO
ENFORCE SPECIFICALLY THIS AGREEMENT AND THE TERMS AND PROVISIONS HEREOF IN ANY
ACTION INSTITUTED IN ANY COURT OF THE UNITED STATES OR ANY STATE THEREOF HAVING
JURISDICTION OVER THE PARTIES.
THE SELLER FURTHER AGREES THAT, IN THE EVENT OF
ANY ACTION FOR SPECIFIC PERFORMANCE IN RESPECT OF SUCH BREACH OR VIOLATION, IT
WILL NOT ASSERT THAT THE DEFENSE THAT A REMEDY AT LAW WOULD BE ADEQUATE.
8.04
PURCHASER DEFAULT; LIQUIDATED DAMAGES.
IF THE
CLOSING SHALL NOT HAVE OCCURRED AS A RESULT OF THE TERMINATION OF THE AGREEMENT
BY THE SELLER PURSUANT TO SECTION 8.01(F) ABOVE, THEN SELLER WILL BE ENTITLED TO
RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES AND SUCH LIQUIDATED DAMAGES SHALL BE
THE SELLER'S SOLE AND EXCLUSIVE REMEDY IN CONNECTION THEREWITH.
THE PARTIES
AGREE THAT THE ANTICIPATED OR ACTUAL HARM, THE DIFFICULTIES OF PROOF OF LOSS AND
THE INCONVENIENCE OR INFEASIBILITY OF OTHERWISE OBTAINING AN ADEQUATE REMEDY
JUSTIFY SUCH LIQUIDATED DAMAGES.
ARTICLE IX
GENERAL PROVISIONS
9.01
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS
REQUIRED OR PERMITTED HEREUNDER WILL BE IN WRITING, AND UNLESS OTHERWISE
PROVIDED IN THIS AGREEMENT, WILL BE DEEMED EFFECTIVE WHEN DELIVERED IN PERSON