EXECUTED AND DELIVERED THE
RELEASES TO BUYER SO LONG AS SAID RELEASES COMPLY WITH THE TERMS OF THIS
AGREEMENT.
11.6
RELEASE OF INDEBTEDNESS AND LIENS.
ALL
INDEBTEDNESS OF THE COMPANY SHALL HAVE BEEN PAID IN FULL AND DISCHARGED AND ALL
OF ITS ASSETS SHALL HAVE BEEN RELEASED FROM ALL LIENS, SECURITY INTERESTS AND
OTHER ENCUMBRANCES.
12.
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
SELLER.
ALL OBLIGATIONS OF SELLER UNDER THIS AGREEMENT ARE, AT SELLER'S
ELECTION, SUBJECT TO THE FULFILLMENT, PRIOR TO OR AT THE CLOSING, OF EACH OF THE
FOLLOWING CONDITIONS:
12.1
NO LITIGATION.
AT THE CLOSING, NO SUIT, ACTION OR
OTHER PROCEEDING SHALL BE PENDING BEFORE ANY COURT OR GOVERNMENTAL AGENCY WHICH
ATTEMPTS TO PREVENT THE OCCURRENCE OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
12.2
REPRESENTATIONS AND WARRANTIES.
ALL
REPRESENTATIONS AND WARRANTIES OF BUYER CONTAINED IN THIS AGREEMENT SHALL BE
TRUE IN ALL MATERIAL RESPECTS AS OF THE CLOSING, AS IF SUCH REPRESENTATIONS AND
WARRANTIES WERE MADE AS OF THE CLOSING DATE (EXCEPT FOR THOSE REPRESENTATIONS OR
WARRANTIES THAT ARE EXPRESSLY MADE ONLY AS OF ANOTHER SPECIFIC DATE, WHICH
REPRESENTATIONS AND WARRANTIES SHALL BE TRUE IN ALL MATERIAL RESPECTS AS OF SUCH
OTHER DATE) AND BUYER SHALL HAVE PERFORMED AND SATISFIED IN ALL MATERIAL
RESPECTS ALL COVENANTS AND FULFILLED ALL CONDITIONS REQUIRED BY THIS AGREEMENT
TO BE PERFORMED AND SATISFIED BY BUYER AT OR PRIOR TO THE CLOSING.
37
13.
TERMINATION.
13.1
CAUSES OF TERMINATION.
THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE TERMINATED:
(A)
AT ANY TIME BY MUTUAL CONSENT OF THE PARTIES.
(B)
BY EITHER PARTY AS PROVIDED IN SECTIONS
5.4(C) AND 6.4(D) PERTAINING TO TITLE DEFECTS AND ADVERSE ENVIRONMENTAL
CONDITIONS, RESPECTIVELY, AND BY BUYER AS PROVIDED IN SECTION 5.5(B) PERTAINING
TO PREFERENTIAL PURCHASE RIGHTS.
(C)
BY BUYER IF, ON THE CLOSING DATE, ANY OF THE
CONDITIONS SET FORTH IN ARTICLE 11 HEREOF SHALL NOT HAVE BEEN SATISFIED OR
WAIVED.
(D)
BY SELLER IF, ON THE CLOSING DATE, ANY OF THE
CONDITIONS SET FORTH IN ARTICLE 12 HEREOF SHALL NOT HAVE BEEN SATISFIED OR
WAIVED.
(E)
BY SELLER OR BUYER IF CLOSING HAS NOT OCCURRED
ON OR BEFORE OCTOBER 31, 2008.
(F)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN, A
PARTY SHALL NOT HAVE THE RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO CLAUSE
(C), (D) OR (E) ABOVE IF SUCH PARTY IS AT SUCH TIME IN MATERIAL BREACH OF ANY
PROVISION OF THIS AGREEMENT.
13.2
EFFECT OF TERMINATION.
(A)
BUYER'S BREACH.
IF CLOSING DOES NOT OCCUR
BECAUSE BUYER WRONGFULLY FAILS TO TENDER PERFORMANCE AT CLOSING OR OTHERWISE
BREACHES THIS AGREEMENT PRIOR TO CLOSING, AND SELLER IS READY TO CLOSE AND IS
NOT IN MATERIAL BREACH OF THIS AGREEMENT, SELLER SHALL HAVE THE RIGHT TO
TERMINATE THIS AGREEMENT AND RETAIN THE DEPOSIT, TOGETHER WITH INTEREST THEREON,
AS LIQUIDATED DAMAGES.
BUYER'S FAILURE TO CLOSE SHALL NOT BE CONSIDERED
WRONGFUL IF (I) CONDITIONS TO BUYER'S OBLIGATION TO CLOSE UNDER ARTICLE 11 ARE
NOT SATISFIED THROUGH NO FAULT OF BUYER AND ARE NOT WAIVED, OR (II) BUYER HAS
TERMINATED THIS AGREEMENT AS OF