Common use of By Buyer Clause in Contracts

By Buyer. (i) if Pro-Fac, the Company or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9. (ii) if Pro-Fac or the Pro-Fac Board shall have (1) not recommended, or after such recommendation has been made, withdrawn or modified in any manner adverse to Buyer its approval or recommendation of this Agreement, the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, or (3) resolved to do any of the foregoing or publicly announced its intention to do any of the foregoing. (iii) if, prior to the Closing Date, the representations and warranties of Pro-Fac and the Company set forth in this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only be true, complete and correct as of such date or with respect to such period), or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, and, with respect to any such breach or failure to perform that is reasonably capable of being remedied, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to perform. (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materials; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders Consent.

By Buyer. (i) if Pro-FacBuyer represents and warrants as follows: 5.2.1 Buyer is duly organized, validly existing and, to the Company or any extent applicable, in good standing under the laws of their respective Subsidiaries shall have breached any the state of their obligations under Section 6.9. (ii) if Pro-Fac or the Pro-Fac Board shall have (1) not recommendedits organization/formation; is, or after will be on the Closing Date, duly qualified and authorized to do business in the State, to the extent such recommendation qualification is required to perform its obligations hereunder or under any Transaction Document; and has been madeor will have on the Closing Date, withdrawn or modified in any manner adverse full power, authority and legal right to Buyer its approval or recommendation execute and deliver and to perform and observe the provisions of this Agreement, the Unit PurchaseLease and all other instruments provided for herein to which it is a party, and otherwise carry out the transactions contemplated hereunder and the Exhibits hereto; 5.2.2 this Agreement has been, and on the Closing Date all other documents to be delivered by Buyer pursuant to this Agreement will have been, duly authorized, executed and delivered by Buyer and constitute, and will constitute, the Amended valid and Restated Marketing binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms; 5.2.3 no consent, approval or other authorization of, or registration, declaration or filing with, any Governmental Authority is required for the due execution and Facilitation Agreement and delivery of this Agreement, any of the agreements and transactions contemplated hereby, (2) approved, recommended other applicable Transaction Documents or endorsed any Acquisition Proposal from a Person other than documents to be executed by Buyer or Lessor hereunder, or for the performance by or the validity or enforceability thereof against Buyer or Lessor; and 5.2.4 To the best of Buyer’s knowledge, Buyer is in compliance in all material respects with the requirements of the Orders. Neither Buyer nor, to the best of Buyer’s knowledge, any of its AffiliatesAffiliates (A) is listed on the Lists, (B) is a Person (as defined in the Order) who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (3C) resolved to do any of the foregoing is owned or publicly announced its intention to do any of the foregoing. controlled by (iii) if, prior to the Closing Date, the representations and warranties of Pro-Fac and the Company set forth in this Agreement which are not qualified including without limitation by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only be true, complete and correct as virtue of such date Person being a director or with respect to such periodowning voting shares or interests), or Pro-Facacts for or on behalf of, any person on the Company Lists or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required other Person who has been determined by this Agreement competent authority to be performed or complied with by it, and, with respect subject to any such breach or failure to perform that is reasonably capable of being remedied, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to perform. (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materials; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted prohibitions contained in the failure to obtain the Bondholders ConsentOrders.

By Buyer. (i) if Pro-Fac, the Company or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9. (ii) if Pro-Fac or the Pro-Fac Board shall have (1) not recommended, or after such recommendation has been made, withdrawn or modified in any manner adverse to Buyer its approval or recommendation of this Agreement, the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, or (3) resolved to do any of the foregoing or publicly announced its intention to do any of the foregoing. (iii) if, prior to the Closing Date, the representations and warranties of Pro-Fac and the Company set forth in this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only be true, complete and correct as of such date or with respect to such period), or Pro-Fac, the Company or any of their respective Subsidiaries Seller shall have breached or failed to perform any of its representations, warranties, covenants or comply other agreements contained in any material respect with any obligationthis Agreement, agreement or covenant required by this Agreement to be performed or complied with by it, and, with respect to any such which breach or failure to perform (A) would result in the failure of a condition set forth in Section 9.2 and (B) is not curable or able to be performed, or, if curable or able to be performed, is not cured or performed prior to the then-applicable Termination Date; provided, however, that (1) Buyer is not in material breach of any of its representations, warranties, covenants or agreements contained herein or in the Sale Order, (2) Buyer notifies Seller in writing of its intention to exercise its rights under this Section 11.1(d)(i) as a result of the breach (the “Buyer Termination Notice”), and (3) Buyer specifies in the Buyer Termination Notice the representation, warranty, covenant or agreement contained herein of which Seller is allegedly in breach; (ii) if, prior to the Closing, the Bankruptcy Case shall be converted into a case under Chapter 7 of the Bankruptcy Code or dismissed, or if a trustee or examiner with expanded powers shall be appointed in the Bankruptcy Case; or (iii) if there shall be excluded from the Acquired Assets any Assumed Contract that is reasonably capable not assignable or transferable pursuant to the Bankruptcy Code or otherwise without the consent of being remediedany Person other than Seller, to the breach or failure extent that such consent shall not have been given prior to perform is not remedied within 30 days after Buyer has furnished the Company with written notice Closing and the exclusion of such breach Assumed Contract shall be materially adverse to the results of operations or failure to perform.the financial condition of the Acquired Assets, taken as a whole; or (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing if any of the Solicitation MaterialsSale Milestones are not met; provided, that or (v) if an Event of Default (as defined in the right to terminate this Agreement under this Section 8.1(d)(ivDIP Order) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders Consent.have occurred;

By Buyer. (i) if Pro-Fac, the Company or there shall have been a breach by any Seller of any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9. (ii) if Pro-Fac its representations, warranties, covenants or the Pro-Fac Board shall have (1) not recommended, or after such recommendation has been made, withdrawn or modified agreements contained in any manner adverse to Buyer its approval or recommendation of this Agreement, which breach would result in the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended failure to satisfy one or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, or (3) resolved to do any more of the foregoing or publicly announced its intention to do any conditions set forth in Section 6.3, and such breach shall be incapable of the foregoing. (iii) if, being cured prior to the Closing DateTermination Date or, the representations and warranties of Pro-Fac and the Company set forth in this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only be true, complete and correct as of such date or with respect to such period), or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, and, with respect to any such breach or failure to perform that is reasonably if capable of being remediedcured prior to the Termination Date, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to perform. (ivx) if, the Bondholder Consent shall not have been obtained cured within 20 days after written notice thereof shall have been received by the Sellers and (Ay) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on terms and conditions satisfactory or prior to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materialssuch 20th day; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 8.1(d)(iv7.1(c)(i) if Buyer is in material breach of any of its representations and warranties contained in this Agreement or has failed in any material respect to perform any of its obligations under this Agreement; or (ii) if the Bidding Procedures Order (A) shall not have been entered by the Bankruptcy Court on or prior to November 26, 2003 or (B) shall fail to be available in full force and effect or shall have been stayed, reversed, modified or amended in any material respect without the prior written consent of Buyer; or (iii) if any fact, event, change or effect has occurred which, individually or in the aggregate, has resulted in a material adverse effect on the value, condition or use of the Acquired Assets taken as a whole or the value or condition (financial or otherwise) of the Business taken as a whole, other than (w) changes in economic or business conditions generally or in the steel industry specifically (provided that the Business is not materially disproportionately affected), (x) changes in laws and regulations impacting the steel industry generally, and (y) changes or effects resulting from the execution or announcement of this Agreement; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(c)(iii) if Buyer if is in material breach of any of its failure representations and warranties contained in this Agreement or has failed in any material respect to fulfill perform any of its obligations under this Agreement; or (iv) if, by no later than December 1, 2003, the results of Buyer's inspection of environmental conditions and Liabilities relating to Sellers, their properties and the Business shall not have been satisfactory to Buyer in its sole discretion; provided, however, that prior to exercising its right to terminate hereunder, Buyer will confer with Sellers to address matters relating to the results of such inspection; provided further that Buyer may only exercise the right to terminate this Agreement under this Section 6.3 has 7.1(c)(iv) on or prior to December 1, 2003; or (v) [if, by no later than November 25, 2003, the Disclosure Schedules shall not have been finalized in a manner satisfactory to Buyer in its sole discretion; provided, however, that Buyer may only exercise the cause right to terminate this Agreement under this Section 7.1(c)(v) on or resulted in the failure prior to obtain the Bondholders Consent.November 25, 2003; or]

By Buyer. (i) As a material inducement to SELLER, BUYER represents and warrants to SELLER that, as of the Effective Date of this Agreement and as of the Expected Closing Date, with the same force and effect as if Pro-Facremade by BUYER in a separate certificate at that time: 1. BUYER is a duly formed and validly existing municipal corporation in the State of California, has all requisite power and authority to conduct business in the Company or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9state where the Property is located. (ii) if Pro-Fac or 2. BUYER has the Pro-Fac Board shall have (1) not recommendedlegal power, or after such recommendation has been made, withdrawn or modified in any manner adverse right and authority to Buyer its approval or recommendation of enter into this Agreement, the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements instruments referenced herein and transactions to consummate the transaction contemplated hereby. The execution and delivery of this Agreement and the instruments referenced herein by BUYER and the performance and observance of the terms and the consummation of the transaction contemplated hereby have all been authorized by all necessary actions of BUYER. 3. This Agreement has been duly executed and delivered by BUYER. 4. This Agreement and all documents required herein to be executed by BUYER are and shall be valid, legally binding obligations in full force and enforceable against BUYER in accordance with their terms. 5. BUYER (2A) approved, recommended or endorsed any Acquisition Proposal from is not listed on the Lists; (B) is not a Person other than Buyer (as defined in the Orders) who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (C) is not owned or controlled by (including, without limitation, by virtue of such Person being a director or owning voting shares or interests), or acts for or on behalf of, any person on the Lists or any of its Affiliates, or (3) resolved other Person who has been determined by competent authority to do any be subject to the prohibitions contained in the Orders. All of the foregoing or publicly announced its intention to do any representations, warranties and covenants of the foregoing. (iii) if, prior to the Closing Date, the representations SELLER and warranties of Pro-Fac and the Company BUYER set forth in this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respect, survive the Closing and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, recordation of the Grant Deed for a period of twelve (12) months after the date hereof Closing (except for those representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only be true, complete and correct as of such date or with respect to such periodthe “Survival Period”), or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, and, with . With respect to any claims and matters covered by the Survival Period, neither Party shall have a right to bring any action or proceeding against the other Party as a result of any untruth or inaccuracy of such breach representations and warranties, or failure to perform that is reasonably capable of being remediedany such breach, unless (a) the Party claiming the breach or failure to perform is not remedied serves a written claim on the other Party within 30 such Survival Period describing in reasonable detail the basis of the claim and (b) said Party thereafter commences and serves an action against the other Party within ninety (90) days after Buyer has furnished said Party gives such notice. Notwithstanding anything to the Company with written notice contrary in this Agreement, (1) SELLER shall have no liability, and BUYER shall make no claim against SELLER, for (and BUYER shall be deemed to have waived any failure of such a condition hereunder by reason of a failure of any condition or a breach of any representation or failure to perform. (ivwarranty) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materials; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure or breach in question constitutes or results from a condition, state of facts or other matter that was actually known to obtain BUYER on or prior to the Bondholders ConsentClosing and BUYER proceeds with the Closing and (2) BUYER shall have no liability, and SELLER shall make no claim against BUYER, for (and SELLER shall be deemed to have waived any failure of a condition hereunder by reason of a failure of any condition or a breach of any representation or warranty) if the failure or breach in question constitutes or results from a condition, state of facts or other matter that was actually known to SELLER on or prior to Closing and SELLER proceeds with the Closing.

By Buyer. From and after the Closing, Buyer shall indemnify, defend and hold harmless each of Parent, Seller and its respective Subsidiaries, Affiliates and Representatives (the “Buyer-Indemnified Parties”) from and against any and all Damages resulting from: (i) if Pro-Facany breach of any representation or warranty made by Buyer in this Agreement (provided that, for purposes of determining whether there has been a breach of any such representation or warranty and/or the Company amount of any Damages related to such breach, such representation or warranty shall be considered without regard to any of their respective Subsidiaries shall have breached qualifications indicated by the words “in all material respects”, “in any of their obligations under Section 6.9.material respect”, “material”, “materially”, “material adverse effect” or “Material Adverse Effect” set forth therein); (ii) if Pro-Fac any breach of any covenant or the Pro-Fac Board shall have (1) not recommended, or after such recommendation has been made, withdrawn or modified agreement made by Buyer in any manner adverse to Buyer its approval or recommendation of this Agreement; (iii) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based on any agreement or understanding alleged to have been made by such Person with Buyer or any Affiliate thereof (or any Person acting (or purportedly acting) on behalf of any such Person) in connection with the Transactions; (iv) any claims, to the Unit Purchaseextent relating to the Business, the Amended by any Person under any bond, letter of credit or guarantee listed on Schedule 3.5(c) and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended posted or endorsed any Acquisition Proposal from a Person other than Buyer made by Parent or any of its Affiliates, Affiliates (other than Rodeo) with any Governmental Entity or (3) resolved to do any third Person in connection with or for the benefit of the foregoing or publicly announced its intention to do any of the foregoing.Business; or (iiiv) if, prior to any Transferred Drilling Assets or the Closing Date, the representations and warranties of Pro-Fac and the Company set forth in Assumed Drilling Liabilities; provided that Buyer shall have no indemnity obligations under this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an of a particular date or only Section 7.2(c)(v) with respect to a specific period of time matters for which need only be true, complete Parent and correct as of such date or with respect Seller are required to such periodindemnify the Parent-Indemnified Parties pursuant to Section 7.2(a), or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, and, with respect to any such breach or failure to perform that is reasonably capable of being remedied, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to perform. (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materials; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders Consent.

By Buyer. From and after the Closing, Buyer, jointly and severally, shall indemnify, save and hold harmless Seller and its Affiliates, successors and permitted assigns and each of the foregoing’s respective directors, officers, employees and agents (collectively, the “Seller Indemnified Parties”) from and against any and all Damages arising out of or resulting from, without duplication: (i) if Pro-Facthe breach of any representation or warranty made by Buyer under ARTICLE IV, the Company or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9. (ii) if Pro-Fac the breach of any covenant or the Pro-Fac Board shall have (1) not recommended, or after such recommendation has been made, withdrawn or modified in any manner adverse to Buyer its approval or recommendation agreement of this Agreement, the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, by Buyer (2) approved, recommended or endorsed any Acquisition Proposal from a Person other than Buyer any covenant or any of its Affiliatesagreement contained in Section 5.8 (Tax Maters)), or (3iii) resolved to do any the operation of the foregoing Company; provided, that, (x) Buyer shall not have any obligation hereunder with respect to any breach set forth in clause (i) or publicly announced its intention (ii) above unless the Seller Indemnified Parties have made a proper claim for indemnification in accordance with Section 10.2(c) (A) with respect to do any a breach of the foregoing. (iii) ifa representation or warranty, prior to the Closing Date, the representations and warranties expiration of Pro-Fac and the Company such representation or warranty as set forth in this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not be trueSection 10.1, complete and correct in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an of a particular date or only B) with respect to a specific period breach of time which need only a covenant or agreement to be trueperformed at or prior to the Closing, complete prior to the Survival End Date, and correct as of such date or (C) with respect to such period), a breach of a covenant or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by itafter the Closing, and, with respect to any such breach or failure to perform that is reasonably capable of being remedied, during the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to perform. eighteen (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days 18)-month period immediately following the mailing date on which such covenant or agreement is to be performed, and (y) the sole recourse of the Solicitation Materials; provided, that the right to terminate this Agreement under this any Seller Indemnified Party for any and all Damages arising out of or resulting from matters set forth in Section 8.1(d)(iv) 5.8 shall not be available to Buyer if its failure to fulfill its obligations under controlled by Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders Consent.10.3. STRICTLY CONFIDENTIAL

By Buyer. To the extent permitted by law, Buyer will indemnify, defend and hold harmless the Holder against any losses, claims, damages or liabilities (joint or several) to which the Holder may become subject under the Securities Act, the Exchange Act or other U.S. federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”): (i) if Pro-Facany untrue statement or alleged untrue statement of a material fact contained in a registration statement filed by Buyer pursuant to this Agreement pursuant to which Registrable Securities are sold, the Company including any preliminary prospectus or final prospectus contained therein or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9.amendments or supplements thereto; (ii) if Pro-Fac the omission or the Pro-Fac Board shall have (1) not recommendedalleged omission to state in such registration statement, preliminary prospectus or final prospectus, or after such recommendation has been madeany amendments or supplements thereto, withdrawn a material fact required to be stated therein or modified in any manner adverse necessary to Buyer its approval or recommendation of this Agreement, make the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, or (3) resolved to do any of the foregoing or publicly announced its intention to do any of the foregoing.statements therein not misleading; or (iii) if, prior to any violation or alleged violation by Buyer of the Closing DateSecurities Act, the representations and warranties Exchange Act, any U.S. federal or state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any U.S. federal or state securities law in connection with the offering of Pro-Fac and Registrable Securities covered by such registration statement; provided, however, that the Company set forth indemnity agreement contained in this Agreement Section 11(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without Buyer’s written consent (which are not qualified by "materiality" or "Material Adverse Effect" consent shall not be trueunreasonably withheld), complete and correct nor shall Buyer be liable in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except such case for those representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only be true, complete and correct as of such date or with respect to such period), or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, and, with respect to any such breach loss, claim, damage, liability or failure action to perform the extent that it arises out of or is reasonably capable of being remedied, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company based upon a Violation which occurs in reliance upon and in conformity with written notice of information furnished expressly for use in connection with such breach or failure to performregistration by the Holder. (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materials; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders Consent.

By Buyer. Buyer hereby warrants, represents and covenants to the Seller Parties that: (i) if ProFP-Fac, LP is a limited partnership validly existing and in good standing under the Company laws of Delaware; has full power and authority to enter into this Agreement and to fulfill its obligations hereunder; has duly authorized this Agreement by all appropriate action; and has caused this Agreement to be duly executed and delivered to the Seller Parties by an individual who is duly authorized and empowered to do so. FP Navistar Manager and FX Xxxx Manager are or any will be by Closing limited liability companies validly existing and in good standing under the laws of the state of their organization; has full power and authority to enter into this Agreement and to fulfill its obligations hereunder; has duly authorized this Agreement by all appropriate action; and has caused this Agreement to be duly executed and delivered to the Seller Parties by an individual who is duly authorized and empowered to do so. This Agreement and the Buyer’s Closing Documents will constitute valid and legally binding obligations of the applicable Buyer, enforceable in accordance with their respective Subsidiaries shall have breached any terms, subject to: (i) judicial principles limiting the availability of their obligations under Section 6.9specific performance, injunctive relief, and other equitable remedies, and (ii) bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect generally relating to or affecting creditors’ rights. There are no bankruptcy, insolvency, rearrangement or similar actions or proceedings, whether voluntary or involuntary, pending or, to the Buyer’s Actual Knowledge, threatened, against the Buyer. (ii) if ProTo Buyer’s Knowledge, no government or other third-Fac party approvals or consents are required for the Pro-Fac Board shall have (1) not recommendedexecution and delivery of, or after such recommendation has been madeperformance of its obligations under, withdrawn or modified in any manner adverse to Buyer its approval or recommendation this Agreement by the Buyer. The execution and performance of this AgreementAgreement by the Buyer do not and will not violate, and are not restricted by, any the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended terms of any other contract or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, or (3) resolved instrument to do which any of the foregoing Buyer is a party or publicly announced its intention to do any Law by which any of the foregoingBuyer is otherwise bound. (iii) ifTo Buyer’s Knowledge, prior there are no lawsuits pending and served against the Buyer or threatened against the Buyer whose outcome could adversely affect the ability of the Buyer to purchase the Closing Date, the representations and warranties of Pro-Fac and the Company set forth in Membership Interests under this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only be true, complete and correct as of such date or with respect to such period), or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, and, with respect to any such breach or failure to perform that is reasonably capable of being remedied, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to performAgreement. (iv) ifThe Buyer has not engaged or dealt with any broker, finder or similar agent in connection with the transaction contemplated by this Agreement. (v) At Closing, the Bondholder Consent Buyer and the applicable LLC shall not have been obtained execute a Closing Indemnity Agreement, pursuant to which the Buyer and the applicable LLC shall indemnify, defend and save harmless the applicable Selling Members from and against all loss, cost, damage, expense (including reasonable attorneys’ fees and litigation costs), claims, liabilities and causes of action arising in respect of any liability of the applicable LLC or the Buyer resulting from the intentional or negligent acts of the applicable LLC or the Buyer, or failures to act where the applicable LLC or the Buyer was under a duty to act, on or after the Closing Date or in connection with Closing under this Agreement. In the event that any claim is made against the applicable Selling Members after Closing on account of any such liabilities of the applicable LLC or the Buyer that are covered by the foregoing indemnity, the Buyer and the applicable LLC shall promptly pay or satisfy the same in accordance with the terms of such Closing Indemnity Agreement. The obligations of the Buyer and the applicable LLC under such Closing Indemnity Agreement shall survive Closing for a period of twelve (12) months following the Closing Date. (vi) EXCEPT FOR THE WARRANTIES, REPRESENTATIONS, COVENANTS AND INDEMNITIES OF THE SELLER PARTIES EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE SELLER’S CLOSING DOCUMENTS, (1) BUYER’S PURCHASE OF THE MEMBERSHIP INTERESTS HEREUNDER WILL BE “AS-IS, WHERE-IS, WITH ALL FAULTS”, AND (2) BUYER WILL BE CONCLUDING THE PURCHASE OF THE MEMBERSHIP INTERESTS HEREUNDER BASED SOLELY ON ITS OWN INSPECTION AND INVESTIGATION OF THE PROPERTIES AND ON ALL DOCUMENTS RELATED THERETO. WITHOUT LIMITING THE FOREGOING, BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE SELLER’S CLOSING DOCUMENTS, THE SELLER PARTIES HAVE NOT MADE ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES ON WHICH BUYER IS RELYING AS TO ANY MATTERS CONCERNING THE PROPERTIES OR THE MEMBERSHIP INTERESTS. FURTHER, TO THE EXTENT THAT THE SELLER PARTIES OR ANY OF THEIR AGENTS OR CONSULTANTS HAS PROVIDED TO BUYER ANY ENVIRONMENTAL REPORT OR ANY INFORMATION FROM ANY OTHER INSPECTION, ENGINEERING OR ENVIRONMENTAL REPORTS CONCERNING ASBESTOS, RADON OR ANY HAZARDOUS SUBSTANCE, NO REPRESENTATIONS, WARRANTIES OR INDEMNITIES ARE MADE BY ANY OF THE SELLER PARTIES WITH RESPECT TO THE ACCURACY OR COMPLETENESS, METHODOLOGY OF PREPARATION OR OTHERWISE CONCERNING THE CONTENTS OF SUCH REPORTS. AS A MATERIAL PART OF THE CONSIDERATION TO THE SELLER PARTIES FOR THE SALE OF THE MEMBERSHIP INTERESTS AND PROPERTIES, BUYER AND, UPON CLOSING, THE LLCS, HEREBY WAIVE AND RELEASE THE SELLER PARTIES (AND THEIR RESPECTIVE PARTNERS, MANAGERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) FROM, ANY AND ALL CLAIMS (OTHER THAN THOSE RELATING TO BREACH OF WARRANTIES, REPRESENTATIONS OR COVENANTS BY THE SELLER PARTIES OR FOR INDEMNITIES OF THE SELLER PARTIES SET FORTH IN THIS AGREEMENT OR IN THE SELLER’S CLOSING DOCUMENTS) THAT ARE BASED DIRECTLY OR INDIRECTLY ON, ARISE FROM OR IN CONNECTION WITH, OR ARE RELATED TO: (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretionANY PAST, and/or PRESENT OR FUTURE CONDITION OF THE PROPERTIES, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OF HAZARDOUS SUBSTANCES AT THE PROPERTIES, (B) within 45 days following the mailing of the Solicitation MaterialsANY AND ALL STATEMENTS, REPRESENTATIONS, WARRANTIES, DETERMINATIONS, CONCLUSIONS, ASSESSMENTS, ASSERTIONS OR ANY OTHER INFORMATION CONTAINED IN ANY OF THE PROPERTY DOCUMENT DELIVERIES, OR (C) ANY DEFECT, INACCURACY OR INADEQUACY IN TITLE OF THE PROPERTIES, LEGAL DESCRIPTION OF THE PROPERTIES, COVENANTS, RESTRICTIONS, ENCUMBRANCES OR ENCROACHMENTS WHICH AFFECT THE PROPERTIES. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT (i) BUYER MAY HEREAFTER DISCOVER FACTS DIFFERENT FROM OR IN ADDITION TO THOSE NOW (OR AS OF THE CLOSING) KNOWN OR BELIEVED TO BE TRUE REGARDING THE PROPERTIES AND/OR PROPERTY INFORMATION, AND (ii) UPON CLOSING, THE BUYER’S AGREEMENT TO RELEASE, ACQUIT AND DISCHARGE THE SELLER PARTIES, SUBJECT TO AND UPON THE TERMS AND PROVISIONS SET FORTH HEREIN, SHALL REMAIN IN FULL FORCE AND EFFECT, NOTWITHSTANDING THE EXISTENCE OR DISCOVERY OF ANY SUCH DIFFERENT OR ADDITIONAL FACTS; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders ConsentPROVIDED THAT SUCH DIFFERENT OR ADDITIONAL FACTS WERE NOT INTENTIONALLY OR FRAUDULENTLY CONCEALED BY THE SELLER PARTIES.

By Buyer. Subject to Sections 11.01 and 11.03, from and after the Closing, Buyer shall indemnify, reimburse, defend and hold harmless Seller, its Affiliates and owners (other than any of its shareholders and lenders in their capacities as such) and their respective officers, directors, employees, agents, successors and assigns (collectively, the “Seller Indemnitees”) from and against any and all Damages incurred in connection with, arising out of, resulting from or incident to (i) if Pro-Fac, the Company any breach of a representation or warranty of Buyer made in this Agreement or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9. Related Agreement, (ii) if Pro-Fac any breach of any covenant or the Pro-Fac Board shall have (1) not recommended, agreement of Buyer in this Agreement or after such recommendation has been made, withdrawn or modified in any manner adverse to Buyer its approval or recommendation of this Related Agreement, the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, or (3) resolved to do any of the foregoing or publicly announced its intention to do any of the foregoing. (iii) ifany Assumed Liabilities, prior and (iv) the conduct of the Business and/or the use of the Purchased Assets by Buyer or its successors and assigns after the Closing, unless such conduct or use, or the matter giving rise to the Closing Dateclaim, relates to a breach of a representation, warranty or covenant of Seller hereunder or is subject to indemnification by Seller under Section 11.02(a) (or would be subject but for the expiration of indemnities under Section 11.01 or the effect of the Buyer Deductible or the Buyer Cap). For purposes of determining whether a representation or warranty of Buyer has been breached, and the amount of any Damages attributable to any such breach, such determinations shall be made without giving any effect to any materiality qualifications in the representations and warranties including without limitation references to “Buyer Adverse Effect” or “in all material respects,” and all such materiality qualifications shall be disregarded. In other words, it is the specific and expressed intent of Pro-Fac and the Company set forth parties that if a representation or warranty of Buyer contained in this Agreement which that is modified by Buyer Adverse Effect or words of similar effect would have been breached by or due to an occurrence, event or circumstance if such representation or warranty were not so qualified, then because all such materiality qualifications are disregarded, the representation or warranty shall be deemed to have been breached and Seller shall be entitled to indemnification pursuant to this Section 11.02(b). For purposes of clarification, the modification of Affiliates and owners contained in the parenthetical on the second and third line of this Section 11.02(b) is intended to provide that the indemnification hereunder are not qualified intended to extend to claims by "materiality" a member or "Material Adverse Effect" shall not be true, complete and correct lender of Seller for indirect damages resulting from Damages incurred by Buyer due to a misrepresentation or breach by Buyer to the extent that such shareholder or lender is affected solely because of their investment in any material respect, and or loan to the representations and warranties that are qualified by "materiality" Seller (such as diminished value of the shareholder’s investment in Buyer or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an a higher risk of collection of a particular date loan for the lender, respectively) because these items are the subject of indemnification of Seller by Buyer hereunder; provided however, the members or only with respect lenders of Seller shall be entitled to indemnification hereunder for Damages they directly incur due to a specific period of time which need only be true, complete and correct misrepresentation or breach by Buyer (such as of such date or with respect to such periodbeing named in a Third Party Claim), or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, and, with respect to any such breach or failure to perform that is reasonably capable of being remedied, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to perform. (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materials; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders Consent.

By Buyer. (i) if Pro-Fac, the Company or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9. (ii) if Pro-Fac or the Pro-Fac Board shall have (1) not recommended, or after such recommendation has been made, withdrawn or modified in any manner adverse to Buyer its approval or recommendation of this Agreement, the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, or (3) resolved to do any of the foregoing or publicly announced its intention to do any of the foregoing. (iii) if, prior Subject to the Closing Date, the representations and warranties of Pro-Fac and the Company limitations set forth in this Article VII, Buyer shall indemnify and hold harmless each of the Sellers (each being referred to individually as a “Seller Indemnified Person,” collectively as “Seller Indemnified Persons,” and together with the Buyer Indemnified Persons, “Indemnified Persons”) from and against any and all Indemnifiable Damages arising out of, resulting from or in connection with (i) any failure of any representation or warranty made by Buyer in this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not to be true, complete true and correct as of the Closing Date (except in any material respect, and the case of representations and warranties that are qualified which by "materiality" their terms speak only as of a specific date or "Material Adverse Effect" shall not be truedates, complete and correct in any respect, at any time, after the date hereof (except for those which representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only shall be true, complete true and correct as of such date), (ii) any failure of any certification, representation or warranty made by Buyer in any certificate delivered to the Sellers pursuant to any provision of this Agreement to be true and correct as of the date such certificate is delivered to the Sellers and (iii) any breach of or default in connection with any of the covenants or agreements made by Buyer or the Company (but in the case of the Company, only covenants in respect of the time period following Closing, unless any such breach of covenant arises out of an action taken by Xxxxx Xxxxx or Xxxxxxx Xxxxxx as officers of the Company, or by any Key Employee who was appointed as an officer of the Company by Xxxxx Xxxxx or Xxxxxxx Xxxxxx, without authorization from the Company’s Board of Directors) in this Agreement. Materiality standards or qualifications, and qualifications by reference to the defined term “Material Adverse Effect” in any representation, warranty or covenant shall only be taken into account in determining whether a breach of or default in connection with such representation, warranty or covenant (or failure of any representation or warranty to be true and correct) exists, and shall not be taken into account in determining the amount of any Indemnifiable Damages with respect to such period)breach, or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, and, with respect to any such breach default or failure to perform that is reasonably capable of being remedied, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to performbe true and correct. (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materials; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders Consent.

By Buyer. (i) if Pro-Facthe Sale Procedures Order shall not have been entered by the Bankruptcy Court within 20 days of the filing of the bankruptcy petition by Seller and, as of the time of such termination of this Agreement, the Company or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9.Sales Procedures Order has not been entered by the Bankruptcy Court; (ii) if Pro-Fac or the Pro-Fac Board shall have (1) Approval Order has not recommendedbeen entered by the Bankruptcy Court within 50 days of the filing of the bankruptcy petition by Seller and, or after as of the time of such recommendation has been made, withdrawn or modified in any manner adverse to Buyer its approval or recommendation termination of this Agreement, the Unit Purchase, Approval Order has not been entered by the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, or (3) resolved to do any of the foregoing or publicly announced its intention to do any of the foregoing.Bankruptcy Court; (iii) ifif a supervisor, prior to the Closing Dateconservator, the representations and warranties of Prorehabilitator, liquidator, receiver or other Person in a similar capacity shall be appointed for either Company or a cease-Fac and the Company set forth in this Agreement which are not qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respectand-desist order is entered, and in the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an case of a particular date cease-and-desist order, such cease-and-desist order is not overturned, vacated or only with respect to a specific period reversed within three Business Days of time which need only be true, complete and correct as the entry of such date or with respect to such period), or Pro-Fac, the Company or any of their respective Subsidiaries shall have breached or failed to perform or comply in any material respect with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, andorder, with respect to either Company; or (iv) if a material default or material breach shall be made by Seller with respect to the due and timely performance of any of its covenants or agreements contained herein, or if its representations or warranties contained in the Agreement shall have become inaccurate (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) and such inaccuracy has had or would be reasonably likely to have a Material Adverse Effect, if such default, breach or failure to perform that is reasonably capable of being remedied, the breach inaccuracy has not been cured or failure to perform is not remedied waived within 30 days after Buyer has furnished the Company with written notice of to Seller specifying, in reasonable detail, such claimed default, breach or failure to performinaccuracy and demanding its cure or satisfaction. (iv) if, the Bondholder Consent shall not have been obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materials; provided, that the right to terminate this Agreement under this Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been the cause or resulted in the failure to obtain the Bondholders Consent.

By Buyer. Subject to the terms and conditions of this -------- Article VII, Buyer covenants and agrees to defend, indemnify and hold harmless each Seller and his heirs, executors, administrators, distributees, legal representatives and Affiliates (i) if Pro-Faccollectively, the Company "Seller Indemnitees") from and against any and all Losses resulting from or arising out of: (a) any misrepresentation or breach of any warranty of Buyer contained in this Agreement; provided, however, that, for purposes of this Article VII, any claim for indemnification by a Seller Indemnitee under this clause (a) may be made no later than six months from and after the Closing Date; (b) any failure of Buyer to perform any covenant or agreement made or contained in this Agreement or fulfill any other obligation in respect thereof; or (c) to the extent arising from or relating to this Agreement or the other elements of the transactions entered into between Sellers or any of their respective Subsidiaries shall have breached any of their obligations under Section 6.9. (ii) if Pro-Fac or Affiliates, on the Pro-Fac Board shall have (1) not recommendedone hand, or after such recommendation has been made, withdrawn or modified in any manner adverse to Buyer its approval or recommendation of this Agreement, the Unit Purchase, the Amended and Restated Marketing and Facilitation Agreement and the agreements and transactions contemplated hereby, (2) approved, recommended or endorsed any Acquisition Proposal from a Person other than Buyer or any of its Affiliates, on the other hand, on or as of the date hereof: (3i) resolved to do insufficient or inadequate disclosure by Buyer or any of the foregoing its Affiliates under any Applicable Law relating to proxies, (ii) failure by Buyer or publicly announced its intention to do any of its Affiliates to follow proper procedures and other matters relating to the foregoing. fact that Buyer is owned by a Person the shares of which are traded publicly or (iii) if, prior to the Closing Date, the representations and warranties alleged breaches of Pro-Fac and the Company set forth in this Agreement which are not qualified fiduciary duty by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any material respect, and the representations and warranties that are qualified by "materiality" or "Material Adverse Effect" shall not be true, complete and correct in any respect, at any time, after the date hereof (except for those representations and warranties that address matters only an of a particular date or only with respect to a specific period of time which need only be true, complete and correct as of such date or with respect to such period), or Pro-Fac, the Company Buyer or any of their respective Subsidiaries shall have breached its Affiliates or failed to perform or comply in any material respect with any obligationthe existence of conflict of interest; provided, agreement or covenant required by this Agreement to be performed or complied with by ithowever, andthat, with respect to any such breach claims or failure to perform that is reasonably capable of being remediedliability arising under clause (iii), the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Company with written notice of such breach or failure to perform. (iv) if, the Bondholder Consent shall not have be obligated to indemnify a Seller to the extent the claimant has been obtained (A) successful in such claim on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 45 days following the mailing of the Solicitation Materialsmerits; provided, further, that the right Buyer shall have no obligations for indemnity to terminate this Agreement under this a Seller or persons claiming through him with respect to actual losses or damages ultimately and finally determined and adjudged to be payable to the extent based on a breach by such Seller of his obligations hereunder or for which Sellers are obligated to indemnify Citadel pursuant to Section 8.1(d)(iv) shall not be available to Buyer if its failure to fulfill its obligations under Section 6.3 has been 8.12 of a certain Merger Agreement, dated the cause or resulted in the failure to obtain the Bondholders Consentdate hereof, among Citadel, Citadel Broadway, Inc., a wholly-owned subsidiary of Citadel, Off Broadway Investments, Inc., and Sellers.