BUYER BY ANY THIRD PARTY.
IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT, BUYER SHALL RETURN ALL
DOCUMENTS AND OTHER MATERIALS FURNISHED BY SELLER. PRIOR TO CLOSING AND SUBJECT
TO SECTION 9.14 HEREOF, BUYER SHALL KEEP ALL NON-PUBLIC INFORMATION OR DATA
RECEIVED OR DISCOVERED IN CONNECTION WITH ANY OF BUYER'S INSPECTIONS, REVIEWS OR
EXAMINATIONS STRICTLY CONFIDENTIAL, EXCEPT FOR DISCLOSURES REQUIRED TO COMPLY
WITH APPLICABLE LAW AND DISCLOSURES TO REPRESENTATIVES, INVESTORS, LENDERS,
COUNSEL AND AGENTS, PROVIDED SUCH DISCLOSURES ARE ON AN AS NEEDED BASIS FOR
BUYER'S ACQUISITION OF THE PROPERTY, AND SUCH PERSONS ARE INSTRUCTED TO KEEP THE
INFORMATION STRICTLY CONFIDENTIAL. THE PROVISIONS OF THIS SECTION 3.2.1 SHALL
SURVIVE ANY TERMINATION OF THIS AGREEMENT.
10
1.1.8
TERMINATION RIGHTS.
(A)
IF, ON OR BEFORE THE EXPIRATION OF THE DUE DILIGENCE PERIOD, BUYER
SHALL DETERMINE IN ITS SOLE DISCRETION THAT IT NO LONGER INTENDS TO ACQUIRE THE
PROPERTY, THEN BUYER SHALL PROMPTLY (BUT IN ALL EVENTS PRIOR TO THE EXPIRATION
OF THE DUE DILIGENCE PERIOD) NOTIFY SELLER OF SUCH DETERMINATION IN WRITING
(SUCH NOTICE BEING HEREIN CALLED THE "TERMINATION NOTICE"), WHEREUPON THIS
AGREEMENT, AND THE OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL TERMINATE (AND NO
PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION IN CONNECTION HEREWITH EXCEPT
UNDER THOSE PROVISIONS THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT).
IN SUCH EVENT, SUBJECT TO SECTION 2.1.1(A) ABOVE, THE ESCROW DEPOSIT SHALL BE
RELEASED TO BUYER BY ESCROW HOLDER. IN THE EVENT THAT BUYER SHALL FAIL TO HAVE
DELIVERED THE TERMINATION NOTICE TO SELLER BEFORE THE EXPIRATION OF THE DUE
DILIGENCE PERIOD, BUYER SHALL HAVE NO FURTHER RIGHT TO TERMINATE THIS AGREEMENT
PURSUANT TO THIS SECTION 3.2.2(A), AND THE ESCROW DEPOSIT SHALL NOT BE
REFUNDABLE TO BUYER FOR ANY REASON WHATSOEVER, EXCEPT AS OTHERWISE SET FORTH IN
THIS AGREEMENT. IF BUYER OBTAINS A WRITTEN RECOMMENDATION FROM A LICENSED
ENGINEER THAT IT CONDUCT ANY INVASIVE TESTING OR SAMPLING, THEN SO LONG AS BUYER
REQUESTS SELLER'S CONSENT TO SUCH TESTING BY WRITTEN NOTICE TO SELLER NOT LATER
THAN JANUARY 10, 2007 (ACCOMPANIED BY A COPY OF THE ENGINEER'S RECOMMENDATION),
SELLER SHALL RESPOND ON OR BEFORE JANUARY 12, 2007. IF SELLER FAILS TO SO
RESPOND, SUCH FAILURE SHALL BE DEEMED A REFUSAL OF BUYER'S REQUEST.
(B)
BUYER MAY ELECT TO TERMINATE THE AGREEMENT BY WRITTEN NOTICE
(INCLUDING, WITHOUT LIMITATION, VIA EMAIL) TO SELLER ON OR BEFORE 12:00 PM
(EASTERN STANDARD TIME) ON JANUARY 19, 2007 (THE "FEASIBILITY DATE") IF BUYER
HAS NOT OBTAINED AND EXECUTED A FIRM COMMITMENT TO UNDERWRITE A PUBLIC OFFERING
OF EQUITY IN AN AMOUNT NOT LESS THAN ONE HUNDRED SIXTY FIVE MILLION DOLLARS
($165,000,000.00). IF BUYER TERMINATES THE AGREEMENT IN ACCORDANCE WITH THE
IMMEDIATELY PRECEDING SENTENCE, THREE MILLION DOLLARS ($3,000,000.00) OF THE
ESCROW DEPOSIT SHALL BE RELEASED AND PAID TO SELLER AS SELLER'S PROPERTY AND THE
REMAINDER OF THE ESCROW DEPOSIT SHALL BE RELEASED AND PAID TO BUYER AND THIS
AGREEMENT SHALL BE VOID, EXCEPTING THOSE PROVISIONS WHICH EXPRESSLY SURVIVE
TERMINATION.
Performance by Seller. The accuracy of Seller's representations and warranties
in all material