Common use of By Purchaser Clause in Contracts

By Purchaser. (i) if Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.

By Purchaser. (i) if Company Seller shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days within ten Business Days after the giving of written notice by Purchaser to Company Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time of such breach or failure; orbreach; (ii) if Company or the Company Board (there shall have occurred any Material Adverse Effect or any committee thereof) has (A) approveddevelopment that, adoptedinsofar as reasonably can be foreseen, endorsed or recommended any Company Acquisition Proposal, (B) failed is reasonably likely to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 result in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; orMaterial Adverse Effect; (iii) if a tender offer Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or exchange offer for 20% not any Governmental Entity shall have issued an order, decree or more of ruling or taken any other action (which order, decree, ruling or other action the outstanding shares of Company Common Stock is commenced (other than parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act.Assets; (iv) if any approval of any Governmental Entity required for consummation of the Merger and Bankruptcy Court has not entered the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement thatBidding Procedures Order by November 2, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or2001; (v) if Company the Bankruptcy Court has experiencednot entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30if the periods of exclusivity under Sections 1121(b) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature and 1121(c) of the matter Bankruptcy Code are terminated or matters constituting such Company Material Adverse Effect and which are reduced by the basis of such intention; provided, however, that the right Bankruptcy Court pursuant to terminate that is specified Section 1121(d) in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative periodSeller's Bankruptcy Case.

By Purchaser. (i) if Company any Seller shall have breached any representation, warranty, covenant or failed other agreement contained in this Agreement and such breach would give rise to perform any the failure of its representations, warranties, covenants or agreements a condition set forth in this AgreementARTICLE VI, which unless such breach or failure to performis fully cured (i.e., either individually or in neither the aggregatebreach, if occurring or the circumstances relating thereto nor the cure thereof will have a continuing effect on the date business of the Company and its Subsidiaries after the Closing) at the expense of Sellers and to the complete satisfaction of Purchaser on which or before the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; orDate. (ii) if Company any Seller shall have breached any representation or warranty contained in this Agreement which would give rise to the failure of a condition set forth in ARTICLE VI and such breach objectively can not reasonably be cured to the complete satisfaction of Purchaser by Sellers’ using their best efforts before the Closing Date, unless (x) Seller has, together with the additional disclosure relating to such breach provided pursuant to Section 5.6, provided a detailed calculation of the estimated Purchaser Losses that can reasonably be anticipated might arise from such breach and Purchaser has agreed in good faith with such estimate, (y) such breach can be cured by monetary relief (i.e., neither the breach, the circumstances relating thereto nor the cure thereof will have a continuing effect on the business of the Company Board and its Subsidiaries after the Closing) and (or any committee thereofz) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed the Sellers agree to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting specifically indemnify Purchaser in accordance with ARTICLE VIII for any Purchaser Loss resulting from such breach, such indemnification not being subject to the limitations set forth in Section 5.48.2, and either (1) the estimated Purchaser Loss agreed by Sellers and Purchaser as reasonably required to be payable in respect of such breach (without giving effect to the limitations set forth in Section 8.2) does not exceed five hundred thousand euros (€500,000); or (iii2) if a tender offer or exchange offer for 20% or more the estimated Purchaser Loss agreed by Sellers and Purchaser as reasonably required to be payable in respect of such breach (without giving effect to the limitations set forth in Section 8.2) exceeds five hundred thousand euros (€500,000) but is less than five million euros (€5,000,000) and the Sellers and Purchaser agree to decrease the cash to be paid at Closing pursuant to Section 1.4(i) and (ii) (and agree to revised allocation of the outstanding shares of Company Common Stock is commenced (other than Cash Portion in a revised Exhibit 1.2) and to increase the Escrow Amount payable pursuant to Section 1.4(iv) and Section 1.4(a)(v) in each case by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders total amount of the Company tender their shares agreed estimated Purchaser Loss without giving effect to the limitations set forth in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within ARTICLE VIII (the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act“Escrow Amount Increase”). (iviii) on or after December 15, 2005 if any approval of any Governmental Entity required for consummation the Closing shall not have theretofore occurred and if the failure of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger Closing to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which occur is not remedied the result of a breach of a representation, warranty or cured within thirty (30) days after notice of intention to terminate is given covenant by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.

By Purchaser. (i) (A) if Company Seller shall have breached or failed to perform any of its representations, warranties, the covenants or agreements set forth contained in this Agreement, which breach or failure Agreement to perform, either individually or in be complied with by Seller such that the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions closing condition set forth in Section 6.1 5.4(b) would not be satisfied or 6.2 (B) if there exists a “Company Terminating Breach” breach of any representation or warranty of Seller contained in this Agreement such that the closing condition set forth in Section 5.4(a) would not be satisfied, and, in the case of both (A) and (B) cannot be or has not been ), such breach is incapable of being cured or has not been waived by the earlier of Termination Date or is not cured by Seller within thirty (130) the Outside Date and (2) 30 days Business Days after the giving of Seller receives written notice to Company of such breach or failure; orfrom Purchaser; (ii) if Company or in the Company Board (or any committee thereof) has event that prior to obtaining the Stockholder Approval (A) approved, adopted, endorsed or recommended any Company Acquisition Proposalan Adverse Recommendation Change shall have occurred, (B) Seller shall have failed to recommend include in the Merger and Proxy Statement the approval of this Agreement by the shareholders recommendation of the CompanyBoard of Directors of Seller that its stockholders vote in favor of the transactions contemplated hereby, (C) materially breached the terms Board of Section 5.3 Directors of Seller shall have failed to publicly reaffirm its recommendation of this Agreement or the transactions contemplated hereby within five (5) Business Days after Purchaser requests in any respect adverse to Purchaserwriting that such recommendation or determination be reaffirmed, or (D) materially breached a tender or exchange offer relating to any Seller Shares shall have been commenced and Seller shall not have sent to its obligations under Section 5.4 by failing stockholders, within ten (10) Business Days after the commencement of such tender or exchange offer, a statement disclosing that Seller recommends rejection of such tender or exchange offer or (E) a Takeover Proposal is publicly announced, and Seller shall have failed to callissue, give notice ofwithin five (5) Business Days after such Takeover Proposal is announced, convene and hold a press release that reaffirms the Company Shareholders Meeting recommendation of the Board of Directors of Seller that its stockholders vote in accordance with Section 5.4favor of the transactions contemplated hereby; or (iii) if a tender offer or exchange offer for 20% or more Seller breaches any of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) its obligations under the Exchange ActSection 8.2. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.

By Purchaser. (i) if Company any Seller shall have breached any representation, warranty, covenant or failed other agreement contained in this Agreement and such breach would give rise to perform any the failure of its representations, warranties, covenants or agreements a condition set forth in this AgreementARTICLE VI, which unless such breach or failure to performis fully cured (i.e., either individually or in neither the aggregatebreach, if occurring or the circumstances relating thereto nor the cure thereof will have a continuing effect on the date business of the Company and its Subsidiaries after the Closing) at the expense of Sellers and to the complete satisfaction of Purchaser on which or before the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; orDate. (ii) if Company any Seller shall have breached any representation or warranty contained in this Agreement which would give rise to the failure of a condition set forth in ARTICLE VI and such breach objectively can not reasonably be cured to the complete satisfaction of Purchaser by Sellers’ using their best efforts before the Closing Date, unless (x) Seller has, together with the additional disclosure relating to such breach provided pursuant to Section 5.6, provided a detailed calculation of the estimated Purchaser Losses that can reasonably be anticipated might arise from such breach and Purchaser has agreed in good faith with such estimate, (y) such breach can be cured by monetary relief (i.e., neither the breach, the circumstances relating thereto nor the cure thereof will have a continuing effect on the business of the Company Board and its Subsidiaries after the Closing) and (or any committee thereofz) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed the Sellers agree to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting specifically indemnify Purchaser in accordance with ARTICLE VIII for any Purchaser Loss resulting from such breach, such indemnification not being subject to the limitations set forth in Section 5.48.2, and either (1) the estimated Purchaser Loss agreed by Sellers and Purchaser as reasonably required to be payable in respect of such breach (without giving effect to the limitations set forth in Section 8.2) does not exceed five hundred thousand euros (€500,000); or (iii2) if a tender offer or exchange offer for 20% or more the estimated Purchaser Loss agreed by Sellers and Purchaser as reasonably required to be payable in respect of such breach (without giving effect to the limitations set forth in Section 8.2) exceeds five hundred thousand euros (€500,000) but is less than five million euros (€5,000,000) and the Sellers and Purchaser agree to decrease the cash to be paid at Closing pursuant to Section 1.4(a) and Section 1.4(c) (and agree to revised allocation of the outstanding shares of Company Common Stock is commenced (other than Cash Portion in a revised Exhibit 1.3(b) and 1.3(d) and to increase the Escrow Amount payable pursuant to Section 1.4(f) in each case by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders total amount of the Company tender their shares agreed estimated Purchaser Loss without giving effect to the limitations set forth in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within ARTICLE VIII (the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act“Escrow Amount Increase”). (iviii) after January 18, 2006 if any approval of any Governmental Entity required for consummation the Closing shall not have occurred on or prior to January 18, 2006, and if the failure of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger Closing to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which occur is not remedied the result of a breach of a representation, warranty or cured within thirty (30) days after notice of intention to terminate is given covenant by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.

By Purchaser. (i) if Company the Sellers shall have breached or failed to perform in any material respect any of its their representations, warranties, covenants or other agreements set forth contained in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) within 30 days after the giving of written notice by Purchaser to Company of the Sellers specifying such breach or failure; orbreach; (ii) on or after July 31, 2003, if Company the Closing shall not have theretofore occurred and if the failure of the Closing to occur is not the result of a breach of a representation, warranty or covenant by Purchaser; PROVIDED, HOWEVER, that the Purchaser or the Company Board (Sellers may extend such date by up to 3 months in the event that the applicable waiting period under the HSR Act shall not have expired or been terminated prior to July 31, 2003; PROVIDED FURTHER that such date shall be extended by an amount of time equal to any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders period during which consummation of the Company, (CTransactions is prohibited pursuant to an injunction or restraint issued by a court of competent jurisdiction; PROVIDED FURTHER that such date shall be extended as necessary if a notice is given by Purchaser to the Sellers pursuant to Section 5.5(e) materially breached hereof within 10 Business Days prior to the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; orClosing Date. (iii) if a tender offer or exchange offer for 20% or more either of the outstanding shares of Company Common Stock is commenced (Sellers shall have entered into, or publicly announced its intention to enter into, a definitive agreement or an agreement in principle with respect to an Acquisition Proposal with any Person other than by Purchaser (or a Subsidiary thereofan Affiliate of Purchaser), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act.; or (iv) if any approval on or prior to the expiration of any Governmental Entity required for consummation of 23 calendar days after the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger delivery to Purchaser as of a First Notice, Sylvan fails to render consummation of confirm in writing to Purchaser that it has discontinued discussions with the Merger unduly burdensome, Person(s) who made the Acquisition Proposal that triggered the First Notice and that it intends to consummate the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative periodTransactions.

By Purchaser. (i) if Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) effected a Company Adverse Recommendation Change or approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act.; or (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensomeburdensome (notwithstanding Purchaser’s compliance with Section 5.2), and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.

By Purchaser. (i) following the Outside Date if the Offer has not been consummated, provided, however, that the right to terminate this Agreement pursuant to this clause (i) shall not be available to Purchaser if (A) the failure to consummate the Offer was the result of a willful and material breach of this Agreement by Purchaser or (B) the Financing Condition has not been met by the Outside Date; or (ii) if any Governmental Entity issues an Order permanently enjoining, restraining or otherwise prohibiting the Share Exchange or the acceptance for payment of, or payment for, shares of Company Common Stock pursuant to the Offer and such Order shall have breached become final and nonappealable; or (iii) if as the result of the failure of any of the Tender Offer Conditions other than the Financing Condition, the Offer shall have terminated or failed expired in accordance with its terms without Purchaser having accepted shares of Company Common Stock for payment pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this clause (iii) shall not be available to Purchaser if its failure to fulfill any of its obligations under this Agreement results in the failure of any such condition or if the failure of such condition results from facts or circumstances that constitute a willful breach of any representation or warranty under this Agreement by Purchaser; or (iv) if the Company breaches or fails to perform in any material respect any of its representations, warranties, or covenants or agreements set forth contained in this Agreement, Agreement which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur perform (A) would result in give rise to the failure of any of the conditions a condition set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) Exhibit A, and (B) cannot be or has not been cured or has not been waived by the earlier of within ten (110) the Outside Date and (2) 30 days after the giving of written notice to the Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intentionbreach; provided, however, that the right to terminate this Agreement pursuant to this clause (iv) shall not be available to Purchaser if Purchaser is in material breach of any representation, warranty or covenant contained in this Agreement; or (v) if prior to the first acceptance of shares of Company Common Stock for payment pursuant to the Offer the Company Board or an Independent Committee withdraws or modifies in a manner adverse to Purchaser, or publicly proposes to withdraw or modify in a manner adverse to Purchaser, its approval or recommendation of this Agreement, the Offer or the Share Exchange, fails to recommend to the Company's shareholders that they accept the Offer and give the Company Shareholder Approval or publicly approves or recommends, or publicly proposes to approve or recommend, any Company Takeover Proposal; or (vi) if the Company Board or an Independent Committee authorized to evaluate a tender offer proposed by a party other than Purchaser, expresses no opinion, remains neutral or is specified unable to take a position with respect to such tender offer; or (vii) if a Material Adverse Effect has occurred and is continuing; (viii) if there shall have been instituted or pending any shareholder derivative litigation or shareholder class action litigation against the Company or the Purchaser or any of their respective subsidiaries, affiliates, officers or directors or if there shall be pending any action, suit or proceeding against the Company or the Purchaser or any of their respective subsidiaries, affiliates, officers or directors challenging or seeking damages or other relief in such notice connection with the acquisition of intention shall itself terminate unless notice of termination is given Shares by Purchaser within fifteen or any of the transactions related thereto or seeking to restrain or prohibit the making or consummation of the Offer or Share Exchange; (15ix) days following if the end Financing Condition is not met by the Outside Date and the failure of such remedial condition does not result from either (A) the existence of a material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or curative periodfinancial position of the Company, (B) the Company's failure to fulfill any of its obligations under this Agreement or from facts or circumstances that constitute a breach of any representation or warranty under this Agreement by the Company, (C) the Company's failure to have received and accepted a fairness opinion from a financial advisor reasonably acceptable to GMAC endorsing the fairness to the Company's shareholders of the terms of the Offer, or (D) the failure to satisfy the Minimum Tender Condition; or (x) if the Financing Condition is not met by the Outside Date and the failure of such condition results from one or more of the reasons set forth in clauses (A) thru (D) of Section 8(c)(ix) above.

By Purchaser. (i) if Company Seller shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be cured prior to the Termination Date or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) within 30 days after the giving of written notice by Purchaser to Company of Seller specifying such breach or failure; orbreach; (ii) if Company Seller or any of its directors or officers shall breach Section 6.6; (A) if Seller breaches its obligations under this Agreement by failing to call or hold the Company stockholders meeting in accordance with Section 6.6, (B) if the Board (of Directors of Seller or any committee thereofthereof shall withdraw or modify, or make any disclosure to the stockholders of Seller, whether or not permitted pursuant to Section 6.6, that has the effect of withdrawing or modifying, its approval or recommendation of this Agreement, (C) if the Board of Directors of Seller or any committee thereof shall approve or recommend, or make any disclosure to the stockholders of Seller, whether or not permitted pursuant to Section 6.6, that has (A) approvedthe effect of approving or recommending, adopted, endorsed or recommended any Company to the stockholders of Seller an Acquisition Proposal, (BD) failed if, after an Acquisition Proposal shall have been made public, the Board of Directors of Seller fails to recommend the Merger and the approval affirm its recommendation of this Agreement by the shareholders of the Company, as promptly as practicable (C) materially breached the terms of Section 5.3 but in any respect adverse to Purchaser, case within 5 Business Days) after any written request from Purchaser or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iiiE) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock constituting an Acquisition Proposal is commenced (other than by Purchaser or a Subsidiary thereof)commenced, and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise Directors of Seller fails to promptly recommend that against acceptance of such shareholders reject offer by the stockholders of Seller (including by taking no position with respect to the acceptance of such tender offer or exchange offer within by the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act.stockholders of Seller); (iv) if any approval of any Governmental Entity required for consummation of the Merger and the person shall have consummated a tender offer or an exchange offer or other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; ortransaction constituting an Acquisition Proposal; (v) if Company has experienced, a condition under Section 8.1 or 8.2 to Purchaser's obligations hereunder is reasonably likely incapable of being satisfied prior to experience, a Company Material Adverse Effect, which the Termination Date; (vi) at any time prior to the last day of the Due Diligence Period if it is not remedied or cured within thirty satisfied, in its sole discretion, with its due diligence investigation; or (30vii) days after notice if the Board of intention to terminate is given by Purchaser, which notice Directors of Purchaser shall specify not have approved this Agreement and the nature consummation of the matter or matters constituting such Company Material Adverse Effect and which are Transaction at the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative periodBoard Meeting.

By Purchaser. (i) if Company Seller shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days within ten Business Days after the giving of written notice by Purchaser to Company Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time of such breach or failure; orbreach; (ii) if Company or the Company Board (there shall have occurred any Material Adverse Effect or any committee thereof) has (A) approveddevelopment that, adoptedinsofar as reasonably can be foreseen, endorsed or recommended any Company Acquisition Proposal, (B) failed is reasonably likely to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 result in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; orMaterial Adverse Effect; (iii) if a tender offer Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or exchange offer for 20% not any Governmental Entity shall have issued an order, decree or more of ruling or taken any other action (which order, decree, ruling or other action the outstanding shares of Company Common Stock is commenced (other than parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act.Assets; (iv) if any approval of any Governmental Entity required for consummation of the Merger and Bankruptcy Court has not entered the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement thatBidding Procedures Order by November 2, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or2001; (v) if Company the Bankruptcy Court has experiencednot entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co-proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30if the periods of exclusivity under Sections 1121(b) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature and 1121(c) of the matter Bankruptcy Code are terminated or matters constituting such Company Material Adverse Effect and which are reduced by the basis of such intention; provided, however, that the right Bankruptcy Court pursuant to terminate that is specified Section 1121(d) in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative periodSeller's Bankruptcy Case.