ANY PAYMENTS MADE PURSUANT TO SECTION 8.6(C) OR 8.6(E) SHALL
BE TREATED BY THE PARTIES AS AN ADJUSTMENT TO THE PURCHASE PRICE.
9.10
FUNDING.
ANY AMOUNT TO WHICH ANY PURCHASER PARTY BECOMES ENTITLED
BY REASON OF THE PROVISIONS OF SECTIONS 9.2 SHALL BE PAID FIRST FROM THE
INDEMNITY ESCROW ON THE TERMS AND CONDITIONS SET FORTH IN THE ESCROW AGREEMENT
SO LONG AS SUCH INDEMNITY ESCROW IS AVAILABLE FOR DISTRIBUTION.
ARTICLE 10
MISCELLANEOUS
10.1
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AT ANY TIME PRIOR
TO THE CLOSING SOLELY:
(A)
BY MUTUAL CONSENT OF PURCHASER AND HANCOCK;
(B)
BY EITHER PURCHASER OR HANCOCK IF THE CLOSING HAS NOT OCCURRED
ON OR BEFORE DECEMBER 31, 2009 (THE "TERMINATION DATE"); PROVIDED THAT THE RIGHT
TO TERMINATE THIS AGREEMENT PURSUANT TO THIS SUBSECTION (B) SHALL NOT BE
AVAILABLE TO A PARTY WHOSE MATERIAL MISREPRESENTATION, BREACH OF REPRESENTATION,
COVENANT, OR WARRANTY, OR FAILURE TO FULFILL ANY OBLIGATION UNDER THIS AGREEMENT
HAS BEEN THE CAUSE OF, OR RESULTED IN, THE FAILURE OF THE CLOSING TO OCCUR ON OR
BEFORE SUCH TERMINATION DATE;
-56-
(C)
BY EITHER PURCHASER OR HANCOCK IF THERE IS OR HAS BEEN A
MATERIAL BREACH, FAILURE TO FULFILL, OR DEFAULT ON THE PART OF THE OTHER PARTY
(WITH THE SELLER PARTIES DEEMED TO BE A SINGLE PARTY FOR THIS PURPOSE) OF ANY OF
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT OR IN THE DUE AND
TIMELY PERFORMANCE AND SATISFACTION OF ANY OF THE COVENANTS OR AGREEMENTS
CONTAINED IN THIS AGREEMENT, SUCH THAT THE CONDITIONS TO CLOSING SET FORTH IN
SECTION 3.1 OR 4.1, AS APPLICABLE, COULD NOT BE SATISFIED AND THE CURING OF SUCH
DEFAULT SHALL NOT HAVE BEEN MADE OR SHALL NOT REASONABLY BE EXPECTED TO OCCUR
BEFORE THE EARLIER TO OCCUR OF (I) THE TERMINATION DATE, OR (II) IF A SELLER
PARTY HAS PROVIDED WRITTEN NOTICE OF SUCH DEFAULT TO PURCHASER PURSUANT TO
SECTION 8.9 ABOVE, FIFTEEN (15) DAYS AFTER SUCH WRITTEN NOTICE WAS PROVIDED, OR
(III) FIFTEEN (15) DAYS AFTER THE DEFAULTING PARTY RECEIVES WRITTEN NOTICE OF
SUCH DEFAULT FROM THE OTHER PARTY; OR
(D)
BY EITHER PURCHASER OR HANCOCK IF THERE SHALL BE A FINAL
NON-APPEALABLE ORDER OF A FEDERAL OR STATE COURT IN EFFECT PREVENTING
CONSUMMATION OF ANY TRANSACTION SET FORTH IN THIS AGREEMENT, OR IF THERE SHALL
BE ANY ACTION TAKEN, OR ANY STATUTE, RULE, REGULATION, OR ORDER ENACTED,
PROMULGATED, OR ISSUED OR DEEMED APPLICABLE TO ANY TRANSACTION SET FORTH IN THIS
AGREEMENT BY ANY GOVERNMENTAL ENTITY OR AGENCY THEREOF THAT WOULD MAKE
CONSUMMATION OF ANY OF THE TRANSACTIONS SET FORTH IN THIS AGREEMENT ILLEGAL.
10.2
EFFECT OF TERMINATION.
IN THE EVENT OF THE TERMINATION OF THIS
AGREEMENT PURSUANT TO SECTION 10.1 ABOVE, THIS AGREEMENT SHALL BECOME VOID
(EXCEPT FOR THIS ARTICLE 10), AND THERE SHALL BE NO LIABILITY ON THE PART OF ANY
PARTY (EXCEPT WITH RESPECT TO ARTICLE 10).
NOTWITHSTANDING THE FOREGOING, IF
SUCH TERMINATION IS BY A PARTY PURSUANT TO SECTION 10.1(C) THEN THE OTHER PARTY
(WITH THE SELLER PARTIES DEEMED TO