Common use of By Buyer Clause in Contracts

By Buyer. (i) if there shall have been a breach by any Seller of any of its representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 6.3, and such breach shall be incapable of being cured prior to the Termination Date or, if capable of being cured prior to the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(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 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 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 (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 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 right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or]

By Buyer. 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 remade 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 state where the Property is located. 2. BUYER has the legal power, right and authority to enter into this Agreement and the instruments referenced herein and 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 (iA) if there is not listed on the Lists; (B) is not a Person (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 other Person who has been determined by competent authority to be subject to the prohibitions contained in the Orders. All of the representations, warranties and covenants of SELLER and BUYER set forth in this Agreement shall survive the Closing and the recordation of the Grant Deed for a period of twelve (12) months after the Closing (the “Survival Period”). With respect to any claims and matters covered by the Survival Period, neither Party shall have been a breach by right to bring any Seller action or proceeding against the other Party as a result of any untruth or inaccuracy of its representations, such representations and warranties, covenants or agreements contained any such breach, unless (a) the Party claiming the breach serves a written claim on the other Party within 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 said Party gives such notice. Notwithstanding anything to the contrary in this Agreement, which (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 a condition hereunder by reason of a failure of any condition or a breach would result in 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 satisfy one or more of the conditions set forth in Section 6.3, and such breach shall be incapable of being cured prior to the Termination Date or, if capable of being cured prior to the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach BUYER on or prior to such 20th day; providedthe Closing and BUYER proceeds with the Closing and (2) BUYER shall have no liability, however that Buyer and SELLER shall not make no claim against BUYER, for (and SELLER shall be deemed to have the right to terminate this Agreement under this Section 7.1(c)(i) if Buyer is in material waived any failure of a condition hereunder by reason of a failure of any condition or a breach of any of its representations and warranties contained in this Agreement representation or has failed in any material respect to perform any of its obligations under this Agreement; or (iiwarranty) if the Bidding Procedures Order (A) shall not have been entered by the Bankruptcy Court 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 November 26, 2003 or (B) shall fail to be in full force Closing and effect or shall have been stayed, reversed, modified or amended in any material respect without SELLER proceeds with 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 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 (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 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 right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or]Closing.

By Buyer. (i) if there 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 breach by any Seller of Person other than Buyer or any of its representationsAffiliates, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure (3) resolved to satisfy one or more do any of the conditions 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 Section 6.3this 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 shall be incapable of being cured prior or failure to the Termination Date or, if perform that is reasonably capable of being cured prior remedied, the breach or failure to perform is not remedied within 30 days after Buyer has furnished the Termination DateCompany with written notice of such breach or failure to perform. (iv) if, (x) the Bondholder Consent shall not have been cured obtained (A) on terms and conditions satisfactory to Buyer in its sole and absolute discretion, and/or (B) within 20 45 days after written notice thereof shall have been received by following the Sellers and (y) mailing of the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th daySolicitation Materials; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(c)(i8.1(d)(iv) shall not be available to Buyer if Buyer is in material breach of any of its representations and warranties contained in this Agreement or has failed in any material respect failure to perform any of fulfill its obligations under this Agreement; or (ii) if Section 6.3 has been the Bidding Procedures Order (A) shall not have been entered by the Bankruptcy Court on cause or prior to November 26, 2003 or (B) shall fail to be 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 resulted in the aggregate, has resulted in a material adverse effect on failure to obtain 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 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 (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 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 right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or]Bondholders Consent.

By Buyer. (i) if there shall Buyer represents and warrants as follows: 5.2.1 Buyer is duly organized, validly existing and, to the extent applicable, in good standing under the laws of the state of its organization/formation; is, or will be on the Closing Date, duly qualified and authorized to do business in the State, to the extent such qualification is required to perform its obligations hereunder or under any Transaction Document; and has or will have been on the Closing Date, full power, authority and legal right to execute and deliver and to perform and observe the provisions of this Agreement, the Lease and all other instruments provided for herein to which it is a breach 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 valid and 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 Seller Governmental Authority is required for the due execution and delivery of this Agreement, any of the other applicable Transaction Documents or any other 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 representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 6.3, and such breach shall be incapable of being cured prior to the Termination Date or, if capable of being cured prior to the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(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 Affiliates (A) shall not have been entered by is listed on the Bankruptcy Court on or prior to November 26Lists, 2003 or (B) shall fail is a Person (as defined in the Order) who has been determined by competent authority to be in full force and effect or shall have been stayed, reversed, modified or amended in any material respect without subject to the prior written consent of Buyer; or (iii) if any fact, event, change or effect has occurred which, individually or prohibitions contained in the aggregateOrders; or (C) is owned or controlled by (including without limitation by virtue of such Person being a director or owning voting shares or interests), has resulted in a material adverse effect or acts for or on behalf of, any person on the value, condition Lists or use of any other Person who has been determined by competent authority to be subject to 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 prohibitions contained 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 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 (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 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 right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or]Orders.

By Buyer. (i) if there Seller shall have been breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, 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 by any Seller of any of its representations, warranties, covenants or agreements contained in this Agreement, which breach would result herein or in the failure to satisfy one or more of the conditions set forth in Section 6.3, and such breach shall be incapable of being cured prior to the Termination Date or, if capable of being cured prior to the Termination DateSale Order, (x2) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances notifies Seller in writing of Sellers' ability its intention to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate this Agreement exercise its rights under this Section 7.1(c)(i11.1(d)(i) if 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 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; orbreach; (ii) if if, prior to the Bidding Procedures Order (A) shall not have been entered by Closing, the Bankruptcy Court on Case shall be converted into a case under Chapter 7 of the Bankruptcy Code or prior to November 26dismissed, 2003 or (B) if a trustee or examiner with expanded powers shall fail to be appointed in full force and effect or shall have been stayed, reversed, modified or amended in any material respect without the prior written consent of BuyerBankruptcy Case; or (iii) if there shall be excluded from the Acquired Assets any factAssumed Contract that is not assignable or transferable pursuant to the Bankruptcy Code or otherwise without the consent of any Person other than Seller, event, change to the extent that such consent shall not have been given prior to the Closing and the exclusion of such Assumed Contract shall be materially adverse to the results of operations or effect has occurred which, individually or in the aggregate, has resulted in a material adverse effect on the value, financial condition or use of the Acquired Assets taken as a whole or the value or condition (financial or otherwise) of the Business Assets, 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 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 (iv) if, by no later than December 1, 2003, if any of the results of Buyer's inspection of environmental conditions and Liabilities relating to Sellers, their properties and the Business shall Sale Milestones are 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 7.1(c)(iv) on or prior to December 1, 2003met; or (v) [if, by no later than November 25, 2003, if an Event of Default (as defined in the Disclosure Schedules DIP Order) shall not have been finalized in a manner satisfactory to Buyer in its sole discretion; provided, however, that Buyer may only exercise the right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or]occurred;

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 any breach of any representation or warranty made by Buyer in this Agreement (provided that, for purposes of determining whether there shall have has been a breach by any Seller of any such representation or warranty and/or the amount of its representationsany Damages related to such breach, warranties, covenants such representation or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 6.3, and such breach warranty shall be incapable of being cured prior considered without regard to the Termination Date or, if capable of being cured prior to the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received any qualifications indicated by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; providedwords “in all material respects”, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(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; orrespect”, “material”, “materially”, “material adverse effect” or “Material Adverse Effect” set forth therein); (ii) if the Bidding Procedures Order (A) shall not have been entered any breach of any covenant or agreement made by the Bankruptcy Court on or prior to November 26, 2003 or (B) shall fail to be Buyer 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; orthis Agreement; (iii) if any fact, event, change claim by any Person for brokerage or effect has occurred which, individually finder’s fees or in the aggregate, has resulted in a material adverse effect commissions or similar payments based on the value, condition any agreement or use of the Acquired Assets taken as a whole understanding alleged to have been made by such Person with Buyer or the value any Affiliate thereof (or condition any Person acting (financial or otherwisepurportedly acting) 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 is in material breach on behalf of any of its representations and warranties contained such Person) in this Agreement or has failed in any material respect to perform any of its obligations under this Agreement; orconnection with the Transactions; (iv) ifany claims, by no later than December 1, 2003, to 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 extent relating to the results Business, by any Person under any bond, letter of such inspection; provided further that Buyer may only exercise credit or guarantee listed on Schedule 3.5(c) and posted or made by Parent or any of its Affiliates (other than Rodeo) with any Governmental Entity or third Person in connection with or for the right to terminate this Agreement under this Section 7.1(c)(iv) on or prior to December 1, 2003benefit of the Business; or (v) [if, by no later than November 25, 2003, any Transferred Drilling Assets or the Disclosure Schedules shall not have been finalized in a manner satisfactory to Buyer in its sole discretionAssumed Drilling Liabilities; provided, however, provided that Buyer may only exercise the right to terminate this Agreement shall have no indemnity obligations under this Section 7.1(c)(v7.2(c)(v) on or prior with respect to November 25, 2003; or]matters for which Parent and Seller are required to indemnify the Parent-Indemnified Parties pursuant to Section 7.2(a).

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 there shall have been any breach of a breach by any Seller representation or warranty of any of its representations, warranties, covenants or agreements contained Buyer made in this Agreement or any Related Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 6.3, and such breach shall be incapable of being cured prior to the Termination Date or, if capable of being cured prior to the Termination Date, (xii) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(c)(i) if Buyer is in material any breach of any covenant or agreement of Buyer in this Agreement or any Related Agreement, (iii) any Assumed Liabilities, 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 claim, 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 the parties that if a representation or warranty of Buyer contained in this Agreement that is modified by Buyer Adverse Effect or has failed in any material respect to perform any words of its obligations under this Agreement; or (ii) if the Bidding Procedures Order (A) shall not similar effect would have been entered 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 Bankruptcy Court on representation or prior warranty shall be deemed to November 26, 2003 or (B) shall fail to be in full force and effect or shall have been stayedbreached and Seller shall be entitled to indemnification pursuant to this Section 11.02(b). For purposes of clarification, reversed, modified or amended in any material respect without the prior written consent modification of Buyer; or (iii) if any fact, event, change or effect has occurred which, individually or Affiliates and owners contained in the aggregateparenthetical on the second and third line of this Section 11.02(b) is intended to provide that the indemnification hereunder are not intended to extend to claims by a member or 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 or loan to the Seller (such as diminished value of the shareholder’s investment in Buyer or a higher risk of collection of a loan for the lender, has resulted respectively) because these items are the subject of indemnification of Seller by Buyer hereunder; provided however, the members or lenders of Seller shall be entitled to indemnification hereunder for Damages they directly incur due to a misrepresentation or breach by Buyer (such as being named 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 affectedThird Party Claim), (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 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 (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 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 right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or].

By Buyer. Subject to the 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) if there shall have been a breach by any Seller failure of any of its representations, warranties, covenants representation or agreements contained warranty made by Buyer in this AgreementAgreement to be true and correct as of the Closing Date (except in the case of representations and warranties which by their terms speak only as of a specific date or dates, which breach would result representations and warranties shall be 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 failure Sellers pursuant to satisfy one or more any provision of this Agreement to be true and correct as of the conditions set forth in Section 6.3, and date such breach shall be incapable of being cured prior certificate is delivered to the Termination Date or, if capable of being cured prior to the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (yiii) any breach of or default in connection with any of the Sellers 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 have provided Buyer be taken into account in determining the amount of any Indemnifiable Damages with adequate assurances of Sellers' ability to remedy such breach on or prior respect to such 20th day; providedbreach, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(c)(i) if Buyer is in material breach of any of its representations and warranties contained in this Agreement default 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 failure to be in full force true 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 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 (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 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 right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or]correct.

By Buyer. (i) if there shall have been a breach by any Seller of any of its representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 6.3, and such breach shall be incapable of being cured prior to the Termination Date or, if capable of being cured prior to the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(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 Sale Procedures Order (A) shall not have been entered by the Bankruptcy Court on or prior to November 26within 20 days of the filing of the bankruptcy petition by Seller and, 2003 or as of the time of such termination of this Agreement, the Sales Procedures Order has not been entered by the Bankruptcy Court; (Bii) shall fail to be in full force and effect or shall have if the Approval Order has not been stayedentered by the Bankruptcy Court within 50 days of the filing of the bankruptcy petition by Seller and, reversedas of the time of such termination of this Agreement, modified or amended in any material respect without the prior written consent of Buyer; orApproval Order has not been entered by the Bankruptcy Court; (iii) if any facta supervisor, eventconservator, change rehabilitator, liquidator, receiver or effect has occurred whichother Person in a similar capacity shall be appointed for either Company or a cease-and-desist order is entered, individually or and in the aggregatecase of a cease-and-desist order, has resulted in a material adverse effect on the valuesuch cease-and-desist order is not overturned, condition vacated or use reversed within three Business Days of the Acquired Assets taken as a whole or the value or condition (financial or otherwise) entry of the Business taken as a wholesuch order, 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 is in material breach of any of its representations and warranties contained in this Agreement or has failed in any material with respect to perform any of its obligations under this Agreementeither Company; or (iv) if, if a material default or material breach shall be made 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 Seller with Sellers to address matters relating respect to the results 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 inspection; provided further that Buyer may only exercise the right inaccuracy has had or would be reasonably likely to terminate this Agreement under this Section 7.1(c)(iv) on have a Material Adverse Effect, if such default, breach or prior inaccuracy has not been cured or waived within 30 days after written notice to December 1Seller specifying, 2003; or (v) [ifin reasonable detail, by no later than November 25such claimed default, 2003, the Disclosure Schedules shall not have been finalized in a manner satisfactory to Buyer in breach or inaccuracy and demanding its sole discretion; provided, however, that Buyer may only exercise the right to terminate this Agreement under this Section 7.1(c)(v) on cure or prior to November 25, 2003; or]satisfaction.

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 there the breach of any representation or warranty made by Buyer under ARTICLE IV, (ii) the breach of any covenant or agreement of this Agreement by Buyer (other than any covenant or agreement contained in Section 5.8 (Tax Maters)), or (iii) the operation of the Company; provided, that, (x) Buyer shall not have been any obligation hereunder with respect to any breach set forth in clause (i) or (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 a breach by any Seller of any a representation or warranty, prior to the expiration of its representations, warranties, covenants such representation or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions warranty as set forth in Section 6.310.1, and such (B) with respect to a breach shall of a covenant or agreement to be incapable of being cured performed at or prior to the Termination Date orClosing, if capable of being cured prior to the Termination Survival End Date, and (xC) shall not have been cured within 20 days with respect to a breach of a covenant or agreement to be performed after written notice thereof shall have been received by the Sellers Closing, during the eighteen (18)-month period immediately following the date on which such covenant or agreement is to be performed, and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(c)(i) if Buyer is in material breach sole recourse of any Seller Indemnified Party for any and all Damages arising out 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 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 matters set forth in Section 5.8 shall not have the right to terminate this Agreement under this be controlled by Section 7.1(c)(iii) 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 (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 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 right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or]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 there shall have been any untrue statement or alleged untrue statement of a breach by any Seller of any of its representations, warranties, covenants or agreements material fact contained in this Agreement, which breach would result in the failure a registration statement filed by Buyer pursuant to satisfy one or more of the conditions set forth in Section 6.3, and such breach shall be incapable of being cured prior to the Termination Date or, if capable of being cured prior to the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(c)(i) if Buyer is in material breach of pursuant to which Registrable Securities are sold, including any of its representations and warranties preliminary prospectus or final prospectus contained in this Agreement therein or has failed in any material respect to perform any of its obligations under this Agreement; oramendments or supplements thereto; (ii) if the Bidding Procedures Order (A) shall not have been entered by the Bankruptcy Court on omission or prior alleged omission to November 26state in such registration statement, 2003 preliminary prospectus or (B) shall fail final prospectus, or any amendments or supplements thereto, a material fact required to be in full force and effect stated therein or shall have been stayed, reversed, modified or amended in any material respect without necessary to make the prior written consent of Buyerstatements therein not misleading; or (iii) if any fact, event, change violation or effect has occurred which, individually or in the aggregate, has resulted in a material adverse effect on the value, condition or use alleged violation by Buyer 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 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 (iv) if, by no later than December 1, 2003Securities Act, the results 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 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 discretionRegistrable Securities covered by such registration statement; provided, however, that prior the indemnity agreement contained in this Section 11(a) shall not apply to exercising its right to terminate hereunderamounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without Buyer’s written consent (which consent shall not be unreasonably withheld), nor shall Buyer will confer with Sellers to address matters relating be liable in any such case for any such loss, claim, damage, liability or action to the results extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such inspection; provided further that Buyer may only exercise registration by the right to terminate this Agreement under this Section 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 right to terminate this Agreement under this Section 7.1(c)(v) on or prior to November 25, 2003; or]Holder.

By Buyer. Buyer hereby warrants, represents and covenants to the Seller Parties that: (i) if there shall have been FP-LP is a breach limited partnership validly existing and in good standing under the 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 any all appropriate action; and has caused this Agreement to be duly executed and delivered to the Seller of any of its representations, warranties, covenants Parties by an individual who is duly authorized and empowered to do so. FP Navistar Manager and FX Xxxx Manager are or agreements contained will be by Closing limited liability companies validly existing and in this Agreement, which breach would result in good standing under the failure to satisfy one or more laws of the conditions set forth 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 Section 6.3accordance with their respective terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and such breach shall be incapable of being cured prior 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 Termination Date orBuyer’s Actual Knowledge, if capable of being cured prior to threatened, against the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate this Agreement under this Section 7.1(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; orBuyer. (ii) if To Buyer’s Knowledge, no government or other third-party approvals or consents are required for the Bidding Procedures Order (A) shall not have been entered execution and delivery of, or performance of its obligations under, this Agreement by the Bankruptcy Court on Buyer. The execution and performance of this Agreement by the Buyer do not and will not violate, and are not restricted by, any the terms of any other contract or prior instrument to November 26, 2003 which any of the Buyer is a party or (B) shall fail to be in full force and effect or shall have been stayed, reversed, modified or amended in any material respect without Law by which any of the prior written consent of Buyer; orBuyer is otherwise bound. (iii) if any factTo Buyer’s Knowledge, event, change there are no lawsuits pending and served against the Buyer or effect has occurred which, individually or in threatened against the aggregate, has resulted in a material adverse effect on Buyer whose outcome could adversely affect the value, condition or use ability of the Acquired Assets taken as a whole or Buyer to purchase 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 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 Membership Interests under this Agreement; or. (iv) ifThe Buyer has not engaged or dealt with any broker, finder or similar agent in connection with the transaction contemplated 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 7.1(c)(iv) on or prior to December 1, 2003; orAgreement. (v) [if, by no later than November 25, 2003At Closing, the Disclosure Schedules Buyer and the applicable LLC shall not have been finalized 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 manner satisfactory duty to Buyer act, on or after the Closing Date or in its sole discretion; provided, however, that Buyer may only exercise the right to terminate this Agreement connection with Closing under this Section 7.1(c)(vAgreement. 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) on or prior to November 25months following the Closing Date. (vi) EXCEPT FOR THE WARRANTIES, 2003REPRESENTATIONS, 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) ANY PAST, PRESENT OR FUTURE CONDITION OF THE PROPERTIES, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OF HAZARDOUS SUBSTANCES AT THE PROPERTIES, (B) ANY 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; or]PROVIDED THAT SUCH DIFFERENT OR ADDITIONAL FACTS WERE NOT INTENTIONALLY OR FRAUDULENTLY CONCEALED BY THE SELLER PARTIES.

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 (icollectively, the "Seller Indemnitees") if there shall have been a from and against any and all Losses resulting from or arising out of: (a) any misrepresentation or breach by any Seller of any warranty of its representations, warranties, covenants or agreements Buyer contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 6.3, and such breach shall be incapable of being cured prior to the Termination Date or, if capable of being cured prior to the Termination Date, (x) shall not have been cured within 20 days after written notice thereof shall have been received by the Sellers and (y) the Sellers shall not have provided Buyer with adequate assurances of Sellers' ability to remedy such breach on or prior to such 20th day; provided, however that Buyer shall not have the right to terminate however, that, for purposes of this Agreement Article VII, any claim for indemnification by a Seller Indemnitee under this Section 7.1(c)(iclause (a) if may be made no later than six months from and after the Closing Date; (b) any failure of Buyer is in material breach of to perform any of its representations and warranties covenant or agreement made or contained in this Agreement or has failed fulfill any other obligation in any material respect to perform any of its obligations under this Agreementthereof; 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 Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, on or as of the date hereof: (i) insufficient or inadequate disclosure by Buyer or any of its Affiliates under any Applicable Law relating to proxies, (ii) if failure by Buyer or any of its Affiliates to follow proper procedures and other matters relating to the Bidding Procedures Order (A) shall not have been entered fact that Buyer is owned by a Person the Bankruptcy Court on shares of which are traded publicly or prior to November 26, 2003 or (B) shall fail to be 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 alleged breaches of fiduciary duty by Buyer 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 is in material breach of any of its representations and warranties contained in this Agreement Affiliates or has failed in any material respect to perform any the existence of its obligations under this Agreement; or (iv) if, by no later than December 1, 2003, the results conflict 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 discretioninterest; provided, however, that prior that, with respect to exercising its right to terminate hereunderclaims or liability arising under clause (iii), Buyer will confer with Sellers shall not be obligated to address matters relating indemnify a Seller to the results of extent the claimant has been successful in such inspection; provided further that Buyer may only exercise claim on the right to terminate this Agreement under this Section 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 discretionmerits; provided, howeverfurther, that the Buyer may only exercise shall have no obligations for indemnity to 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 right extent based on a breach by such Seller of his obligations hereunder or for which Sellers are obligated to terminate this Agreement under this indemnify Citadel pursuant to Section 7.1(c)(v) on or prior to November 258.12 of a certain Merger Agreement, 2003; or]dated the date hereof, among Citadel, Citadel Broadway, Inc., a wholly-owned subsidiary of Citadel, Off Broadway Investments, Inc., and Sellers.