Seller to close
the transactions herein contemplated) are subject to the following conditions
precedent:
10.01
NO TERMINATION.
NEITHER BUYER NOR SELLER SHALL HAVE TERMINATED THIS
AGREEMENT PURSUANT TO SECTION 11.01 HEREOF.
10.02
BRING-DOWN OF BUYER WARRANTIES.
ALL WARRANTIES AND REPRESENTATIONS
MADE BY BUYER HEREIN TO SELLER SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON AND AS OF THE CLOSING DATE WITH THE SAME EFFECT AS IF SUCH
WARRANTIES AND REPRESENTATIONS HAD BEEN MADE ON AND AS OF THE CLOSING DATE, AND
BUYER SHALL HAVE PERFORMED AND COMPLIED WITH ALL AGREEMENTS,
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COVENANTS AND CONDITIONS ON ITS PART REQUIRED TO BE PERFORMED OR COMPLIED WITH
ON OR PRIOR TO THE CLOSING DATE, AND AT THE CLOSING, SELLER SHALL HAVE RECEIVED
A CERTIFICATE EXECUTED BY THE PRESIDENT OR ANY VICE PRESIDENT OF BUYER TO THE
FOREGOING EFFECT.
10.03
DOCUMENT DELIVERY.
SELLER SHALL HAVE RECEIVE COPIES OF THE
DOCUMENTS TO BE DELIVERED PURSUANT TO SECTION 6.03 HEREOF.
Seller shall have the right to waive any of the foregoing conditions precedent.
ARTICLE XI
TERMINATION
11.01
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AT ANY TIME PRIOR TO
THE CLOSING AS FOLLOWS, AND IN NO OTHER MANNER:
(A)
BY MUTUAL CONSENT OF BUYER AND SELLER;
(B)
BY BUYER OR BY SELLER, IF AT OR BEFORE THE CLOSING ANY CONDITIONS
SET FORTH HEREIN FOR THE BENEFIT OF THE BUYER OR SELLER, RESPECTIVELY, SHALL NOT
HAVE BEEN TIMELY MET OR CANNOT BE TIMELY MET; PROVIDED, THE PARTY SEEKING TO
TERMINATE IS NOT IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT;
(C)
BY BUYER OR BY THE SELLER IF THE CLOSING OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT SHALL NOT HAVE OCCURRED ON OR BEFORE JULY 15,
2007 (THE "DROP DEAD DATE"), OR SUCH LATER DATE AS MAY HAVE BEEN AGREED UPON IN
WRITING BY THE PARTIES HERETO; PROVIDED, THE PARTY SEEKING TO TERMINATE IS NOT
IN BREACH OR DEFAULT UNDER THIS AGREEMENT;
(D)
BY BUYER OR BY SELLER IF ANY REPRESENTATION OR WARRANTY MADE
HEREIN FOR THE BENEFIT OF BUYER OR SELLER, RESPECTIVELY, OR IN ANY CERTIFICATE,
SCHEDULE OR DOCUMENTS FURNISHED TO SELLER OR BUYER, RESPECTIVELY, PURSUANT TO
THIS AGREEMENT IS UNTRUE IN ANY MATERIAL RESPECT, OR BUYER OR SELLER,
RESPECTIVELY, SHALL HAVE DEFAULTED IN ANY MATERIAL RESPECT IN THE
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PERFORMANCE OF ANY MATERIAL OBLIGATION UNDER THIS AGREEMENT; PROVIDED, THE PARTY
SEEKING TO TERMINATE IS NOT IN BREACH OR DEFAULT UNDER THIS CONTRACT;
(E)
BY BUYER OR SELLER PURSUANT TO SECTION 3.02(B) HEREOF;
(F)
BY BUYER OR SELLER PURSUANT TO SECTION 5.03 HEREOF; OR
(G)
BY BUYER OR SELLER IF ANY INVESTIGATION, ACTION, SUIT OR
PROCEEDING BY ANY GOVERNMENTAL OR REGULATORY COMMISSION, AGENCY, BODY OR
AUTHORITY ("GOVERNMENTAL ACTION") OR BY ANY OTHER PERSON ("THIRD PARTY ACTION")
SHALL BE PENDING ON THE CLOSING DATE WHICH CHALLENGES OR IS REASONABLY LIKELY TO
RESULT IN A CHALLENGE TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY,
OR WHICH CLAIMS, OR IS REASONABLY LIKELY TO GIVE RISE TO A CLAIM FOR, DAMAGES IN
A MATERIAL AMOUNT AS A