CURED WITHIN FIVE DAYS AFTER
THE PURCHASER SHALL HAVE DELIVERED THE SELLER NOTICE THEREOF;
(D)
AT ANY TIME BEFORE THE CLOSING, BY THE SELLER IF ANY OF THE
CONDITIONS SET FORTH IN ARTICLE X SHALL HAVE BECOME INCAPABLE OF FULFILLMENT OR
CURE AND SHALL NOT HAVE BEEN WAIVED BY THE SELLER, PROVIDED THAT THE SELLER IS
NOT THEN IN BREACH OF THIS AGREEMENT;
(E)
AT ANY TIME AFTER THE TERMINATION DATE BY EITHER PARTY IF THE
CLOSING FAILS TO OCCUR ON OR BEFORE SUCH DATE, UNLESS SUCH FAILURE IS DUE TO THE
ACTION OR INACTION OF, OR BREACH OF THIS AGREEMENT BY, SUCH PARTY;
(F)
AT ANY TIME BEFORE THE CLOSING BY THE SELLER IN THE EVENT THAT
THERE HAS BEEN A PURCHASER MATERIAL ADVERSE EFFECT; OR
(G)
AT ANY TIME FOLLOWING THE NINETIETH DAY FROM THE DATE HEREOF, BY
EITHER PARTY IF BY SUCH DATE THE SALE ORDER HAS NOT BEEN ENTERED.
11.2.
Effect of Termination.
If this Agreement is terminated under Section
11.1, written notice thereof shall forthwith be given to the other party and
this Agreement shall thereafter become void and have no further force and effect
and, except for those provisions that expressly survive the termination of this
Agreement, all further obligations of the Seller, and the Purchaser, to each
other under this Agreement shall terminate without further obligation or
liability of either of the foregoing to the other, except that:
27
(A)
EACH PARTY SHALL RETURN ALL DOCUMENTS, WORKPAPERS AND OTHER
MATERIAL OF ANY OTHER PARTY RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, WHETHER SO OBTAINED BEFORE OR AFTER THE EXECUTION OF THIS AGREEMENT,
TO THE PARTY FURNISHING THE SAME;
(B)
UPON TERMINATION OF THIS AGREEMENT, THE DEPOSIT SHALL BE PROMPTLY
RETURNED TO THE PURCHASER PURSUANT TO THE TERMS OF THE ESCROW AGREEMENT; UNLESS
(I) THE SELLER SHALL HAVE TERMINATED THIS AGREEMENT PURSUANT TO SECTION 11.1(D)
AS A RESULT OF A MATERIAL BREACH BY THE PURCHASER OF THE TERMS HEREOF AND THE
FAILURE OF THE PURCHASER TO CURE SUCH BREACH WITHIN FIVE DAYS AFTER NOTICE
THEREOF, OR (II) THE PURCHASER SHALL HAVE TERMINATED OR PURPORTED TO TERMINATE
THIS AGREEMENT FOR ANY REASON NOT EXPRESSLY PERMITTED IN SECTION 11.1 (IN ANY
EVENT SPECIFIED IN SUBSECTIONS (I) OR (II) OF THIS SECTION 11.2(B), THE DEPOSIT
SHALL BE FORFEITED BY THE PURCHASER AND SHALL BE DELIVERED TO THE SELLER
PURSUANT TO THE TERMS OF THE ESCROW AGREEMENT);
(C)
THE CONFIDENTIALITY AGREEMENTS SHALL REMAIN IN FULL FORCE AND
EFFECT; AND
(D)
THIS SECTION 11.2 WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
ARTICLE XII
MISCELLANEOUS
12.1.
Notices.
Any notice, request, demand or other communication required or
permitted under this Agreement shall be in writing and shall be delivered
personally or sent by certified mail, return receipt requested, postage prepaid,
or sent by prepaid overnight courier to the parties at the addresses set forth
below their names below (or at such other addresses as shall be specified by the
parties by like notice).
If to the Seller:
With a