VENDOR, IF ANY OF VENDOR'S CONDITIONS SHALL HAVE NOT BEEN
FULFILLED OTHER THAN AS A RESULT OF VENDOR'S BREACH OF THIS AGREEMENT BY THE
TIME REQUIRED OR SHALL HAVE BECOME INCAPABLE OF FULFILLMENT, AND SHALL NOT HAVE
BEEN WAIVED BY VENDOR; AND
(D)
BY EITHER VENDOR OR PURCHASER, IF THE CLOSING DOES NOT OCCUR ON OR
BEFORE THE OUTSIDE DATE; PROVIDED THAT THE RIGHT TO TERMINATE THIS AGREEMENT
UNDER THIS SECTION 12.1(D) SHALL NOT BE AVAILABLE TO A PARTY WHOSE FAILURE TO
FULFILL ANY OBLIGATION UNDER THIS AGREEMENT, EXCEPT AS PROVIDED IN SECTION 9.16,
HAS CAUSED OR RESULTED IN THE FAILURE OF THE CLOSING TO OCCUR ON OR BEFORE THE
OUTSIDE DATE.
12.2
REGARDING TERMINATION BY PURCHASER
Any termination of this Agreement by Purchaser pursuant to Section 12.1 shall be
without prejudice to any Claims Purchaser may have arising hereunder out of any
incorrect or inaccurate representations or warranties of Vendor in this
Agreement or any breach by Vendor of any of its covenants in this Agreement, but
subject always to the limitations set forth in Article 6.
12.3
REGARDING TERMINATION BY VENDOR
Any termination of this Agreement by Vendor pursuant to Section 12.1 shall be
without prejudice to any Claims Vendor may have arising out of any incorrect or
inaccurate representations or warranties of Purchaser in this Agreement or any
breach by Purchaser of any of its covenants, but subject always to the
limitations set forth in Article 6 and, if applicable, Section 12.4(b).
12.4
DEPOSIT
(A)
AT OR BEFORE THE CLOSING TIME OR AT SUCH TIME AS THIS AGREEMENT IS
TERMINATED BEFORE CLOSING, AS APPLICABLE, VENDOR AND PURCHASER SHALL PROVIDE
WRITTEN NOTICE TO THE ESCROW AGENT WHICH NOTICE SHALL DIRECT THE ESCROW AGENT AS
TO THE PAYMENT OF THE DEPOSIT.
(B)
IF THE CLOSING DOES NOT OCCUR BECAUSE ANY REPRESENTATIONS OR
WARRANTIES MADE BY PURCHASER ARE INCORRECT OR INACCURATE OR BECAUSE PURCHASER
FAILED TO PERFORM ANY OF ITS OBLIGATIONS OR COVENANTS UNDER THIS AGREEMENT, THE
FULL AMOUNT OF THE DEPOSIT TOGETHER WITH ALL ACCRUED INTEREST (LESS ANY
APPLICABLE WITHHOLDING TAXES) SHALL BECOME THE PROPERTY OF, SHALL BE PAID BY THE
ESCROW AGENT TO AND MAY BE RETAINED BY, VENDOR AS LIQUIDATED DAMAGES (AND NOT AS
A PENALTY) TO COMPENSATE VENDOR FOR THE EXPENSES INCURRED AND OPPORTUNITIES
FOREGONE AS A RESULT OF THE FAILURE OF THE PURCHASE TO CLOSE.
TO THE EXTENT THE
DEPOSIT IS PAID TO VENDOR IN THE CIRCUMSTANCES DESCRIBED IN THIS
SECTION 12.4(B), VENDOR SHALL RETAIN THE DEPOSIT, PLUS ANY INTEREST THEREON
(LESS APPLICABLE WITHHOLDING TAXES), AS GENUINE PRE-ESTIMATE BY VENDOR AND
PURCHASER OF VENDOR'S LIQUIDATED DAMAGES, NOT AS A PENALTY AND AS VENDOR'S SOLE
REMEDY HEREUNDER AGAINST PURCHASER FOR ALL BREACHES HEREOF PRIOR TO THE CLOSING
OR IN CONNECTION WITH THE TERMINATION OF THE PURCHASE.
(C)
IF THE CLOSING DOES NOT OCCUR FOR ANY REASON OTHER THAN A DEFAULT
BY PURCHASER IN THE PERFORMANCE OF ITS OBLIGATIONS OR COVENANTS UNDER THIS
AGREEMENT OR ANY REPRESENTATIONS OR WARRANTIES MADE BY PURCHASER BEING INCORRECT
OR INACCURATE, THE