such notice to cure the default. If Transferee timely cures the default, the
default shall be deemed waived and this Agreement shall continue in full force
and effect. If Transferee fails to timely cure such default, Transferor shall be
entitled to terminate this Agreement pursuant to the terms of this Section 11.2.
IF TRANSFEROR TERMINATES THIS AGREEMENT PURSUANT TO THIS SECTION 11.2,
TRANSFEREE AND TRANSFEROR AGREE THAT TRANSFEROR'S ACTUAL DAMAGES WOULD BE
IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT,
IN SUCH EVENT, TRANSFEROR, AS TRANSFEROR'S SOLE AND EXCLUSIVE REMEDY, IS
ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT, IN WHICH CASE (A)
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF TRANSFEREE AND TRANSFEROR
HEREUNDER SHALL BE OF NO FURTHER FORCE OR EFFECT AND NONE OF THE PARTIES SHALL
HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER OTHER THAN PURSUANT TO ANY
PROVISION HEREOF WHICH EXPRESSLY SURVIVES THE TERMINATION OF THIS AGREEMENT, (B)
ESCROW AGENT SHALL DELIVER THE DEPOSIT TO TRANSFEROR PURSUANT TO TRANSFEROR'S
INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES
(OTHER THAN ANY AMOUNTS PAYABLE PURSUANT TO THE INDEMNITY PROVISIONS OF SECTION
2.1), AND (C) ALL TITLE AND ESCROW CANCELLATION CHARGES, IF ANY, SHALL BE
CHARGED TO TRANSFEREE. THE PARTIES HEREBY AGREE THAT THE AMOUNT OF THE DEPOSIT
IS A FAIR AND REASONABLE ESTIMATE OF THE TOTAL DETRIMENT THAT TRANSFEROR WOULD
SUFFER IN THE EVENT OF TRANSFEREE'S DEFAULT AND FAILURE TO DULY COMPLETE THE
ACQUISITION HEREUNDER. TRANSFEROR IRREVOCABLY WAIVES THE RIGHT TO SEEK OR OBTAIN
ANY OTHER LEGAL OR EQUITABLE REMEDIES, INCLUDING THE REMEDIES OF DAMAGES AND
SPECIFIC PERFORMANCE (PROVIDED, THAT TRANSFEROR IS ABLE TO COLLECT THE FULL
AMOUNT OF THE DEPOSIT FROM ANY LETTER OF CREDIT PROVIDER, TO THE EXTENT
APPLICABLE. OTHERWISE TRANSFEROR SHALL HAVE THE RIGHT TO TAKE SUCH ACTION AS IS
REQUIRED TO COLLECT SUCH AMOUNT FROM SUCH LETTER OF CREDIT PROVIDER OR
TRANSFEREE).
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TRANSFEROR AND TRANSFEREE ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE
PROVISIONS OF THIS SECTION 11.2, AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE
TO BE BOUND BY ITS TERMS.
Transferor's Initials
Transferee's Initials
ARTICLE XII
Escrow
12.1
Escrow.
(a)
Escrow Agent is hereby appointed and designated to act as Escrow
Agent hereunder and is instructed to hold and deliver, pursuant to the terms of
this Agreement, the documents and funds to be deposited into escrow as herein
provided. Escrow Agent shall hold the Deposit in escrow (and, to the extent
delivered in the form of cash, in insured money market accounts, certificates of
deposit, United States Treasury Bills or such other interest-bearing accounts as
Transferee and Transferor, both acting reasonably, may jointly instruct from
time to time) until the earlier to occur of (i) the Closing Date, at which time
the Deposit shall be paid to Transferor and credited towards the Purchase Price
in accordance with the terms of Section 9.5(a), or (ii) the date on which Escrow
Agent is authorized to disburse the Deposit as set forth in Section 12.1(b).