AND TEST RESULTS TOGETHER WITH THE RIGHT, AS A PARTY OF INTEREST, TO BE
ABLE TO ACCESS THE CONSULTANT'S FILE INFORMATION AND WORK PRODUCT IN THE EVENT
THE CLOSING DOES NOT OCCUR, UNLESS THE CLOSING DOES NOT OCCUR BECAUSE OF
SELLER'S DEFAULT UNDER THIS AGREEMENT. BUYER SHALL OBTAIN ALL CONSULTANTS'
CONSENT TO THE FOREGOING AS A PART OF ANY RETENTION AGREEMENT. SELLER'S RIGHTS
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. BUYER SHALL BEAR THE COSTS AND
EXPENSES WITH RESPECT TO ITS FEASIBILITY STUDIES HEREUNDER, INCLUDING, BUT NOT
LIMITED TO, ALL ENVIRONMENTAL MATTERS AND INVESTIGATIONS.
5.3
PERFORMANCE. SELLER SHALL HAVE PERFORMED,
OBSERVED AND COMPLIED WITH ALL COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY
THIS AGREEMENT TO BE PERFORMED, OBSERVED AND COMPLIED WITH ON ITS PART PRIOR TO
OR AS OF THE CLOSING HEREUNDER.
5.4
DOCUMENTS AND DELIVERIES. ALL INSTRUMENTS AND
DOCUMENTS REQUIRED ON SELLER'S PART TO EFFECTUATE THE CLOSING, AS SET FORTH
HEREIN AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE DELIVERED TO BUYER OR
THE ESCROW AGENT, AS REQUIRED HEREBY, AND SHALL BE IN FORM AND SUBSTANCE
CONSISTENT WITH THE REQUIREMENTS HEREIN.
5.5
TITLE POLICY. AT THE CLOSING, TITLE COMPANY
SHALL HAVE DELIVERED TO BUYER EITHER (A) A CLTA OWNER'S STANDARD POLICY OF TITLE
INSURANCE (THE "TITLE POLICY"), INSURING BUYER'S FEE SIMPLE TITLE TO THE
PROPERTY IN THE AMOUNT OF THE PURCHASE PRICE SUBJECT ONLY TO THE PERMITTED
EXCEPTIONS, OR (B) TITLE COMPANY'S IRREVOCABLE COMMITMENT TO ISSUE SUCH TITLE
POLICY SUBJECT ONLY TO THE PERMITTED EXCEPTIONS.
5.6
CONDITION OF PROPERTY. SUBJECT TO THE TERMS
AND CONDITIONS OF ARTICLE 9 BELOW, THE PHYSICAL CONDITION OF THE PROPERTY SHALL
BE SUBSTANTIALLY THE SAME ON THE DAY OF CLOSING AS ON THE DATE OF BUYER'S
EXECUTION OF THIS AGREEMENT, REASONABLE WEAR AND TEAR EXCEPTED.
5.7
ACCURACY OF REPRESENTATIONS. ALL OF THE
REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT SHALL HAVE
BEEN TRUE AND CORRECT IN ALL MATERIAL RESPECTS WHEN MADE, AND SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON THE DATE OF CLOSING (AS DEFINED IN
SECTION 7.1 BELOW) WITH THE SAME EFFECT AS IF MADE ON AND AS OF SUCH DATE.
9
5.8
FAILURE OF CONDITIONS. IF ANY OF THE
CONTINGENCIES SET FORTH IN THIS ARTICLE 5 ARE NOT SATISFIED OR WAIVED IN WRITING
BY BUYER AT OR PRIOR TO THE TIMES PRESCRIBED THEREIN, THEN, BUYER MAY ELECT, BY
WRITTEN NOTICE TO SELLER, TO TERMINATE THIS AGREEMENT, IN WHICH EVENT ALL
RIGHTS, OBLIGATIONS AND LIABILITIES OF SELLER AND BUYER UNDER AND PURSUANT TO
THIS AGREEMENT SHALL TERMINATE (EXCEPT FOR OBLIGATIONS OR LIABILITIES UNDER THIS
AGREEMENT THAT EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT AND RIGHTS OF
THE PARTIES WITH RESPECT TO SUCH SURVIVING OBLIGATIONS AND LIABILITIES), THE
ESCROW AGENT SHALL, WITHOUT FURTHER NOTICE TO OR FROM ANY PARTY, AND WITHOUT
LIABILITY THEREFOR, CANCEL AND TERMINATE THE ESCROW AND THE DEPOSIT SHALL BE
PAID TO BUYER. IF, HOWEVER, ANY OF THE CONTINGENCIES SET FORTH IN SECTION 5.3 OR
SECTION 5.7 ARE NOT SATISFIED, OR ANY OTHER CONDITION SET FORTH IN