Common use of Certain Conditions Clause in Contracts

Certain Conditions. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be entitled to make an Adverse Recommendation Change pursuant to Section 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unless: (i) the Company shall have provided to Parent prior written notice at least four business days in advance (the “Match Right Period” and, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); and (ii) during such Match Right Period, if requested by Parent in good faith, the Company and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day period.

Certain Conditions. Notwithstanding anything The continuing obligations of each Consenting Party set forth in Section ‎3.01 hereof, following the occurrence of the PSA Effective Date, are subject to the contrary contained in this Agreement, the Company shall not be entitled to make an Adverse Recommendation Change pursuant to Section 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unlessfollowing conditions: (a) the Plan and Plan Documents shall (i) be in form and substance reasonably acceptable to each of the Company shall have provided Requisite Consenting Noteholders and the Plan Proponents and (ii) only in the case of AMT, not materially adversely affect the AMT Claims Treatment; provided, however, that any documents with respect to Parent prior written notice at least four business days in advance (the “Match Right Period” andRights Offering, such noticeincluding without limitation, the Backstop Commitment Agreement, and the Registration Rights Agreement shall, in each case, be filed contemporaneously with the Plan and be acceptable to each of the Requisite Consenting Noteholders in their sole discretion; provided, further, that the foregoing consent rights of the Requisite Consenting Noteholders with respect to the CDB Amendments shall expire as of December 18, 2014 (except for any amendments, restatements, modifications or refinancing of the CDB Agreements that are proposed from and after December 18, 2014 (“Match Right NoticeSubsequent CDB Amendments”), advising Parent which Subsequent CDB Amendments shall be reasonably acceptable to the Company and each of the Requisite Consenting Noteholders), it being understood that the CDB Amendments shall be deemed reasonably acceptable to the Requisite Consenting Noteholders in the absence of the delivery to the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal written objection thereto by any of the Requisite Consenting Noteholders on or details of such Intervening Eventbefore December 17, as applicable)2014; and (iib) during such Match Right Period, if requested by Parent in good faith, the Company and its Representatives this Agreement shall have engaged not been terminated in good faith negotiations accordance with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day period.

Certain Conditions. Notwithstanding anything Initial Conditions: The availability of the Revolving Facility shall be conditioned upon satisfaction of, among other things, the following conditions precedent (the date upon which all such conditions precedent shall be satisfied, the “Closing Date”) on or before [ ], 2020: (a) The Borrower shall have executed and delivered satisfactory definitive financing documentation with respect to the contrary contained in this Revolving Facility, including a credit agreement (the “Credit Agreement”), security documents and other legal documentation (collectively, together with the Credit Agreement, the Company “Loan Documents”) mutually satisfactory to the Borrower and the Lenders. (b) The Lenders, the Lead Arranger and the Administrative Agent shall not have received all fees required to be entitled to make an Adverse Recommendation Change pursuant to Section 5.02(fpaid and all expenses for which invoices have been presented, on or before the Closing Date. (c) All governmental and Section 5.02(gthird party approvals necessary in connection with the financing contemplated hereby and the continuing operations of the Borrower and its subsidiaries (including shareholder approvals, if any) or terminate this Agreement pursuant to Section 8.01(fshall have been obtained on satisfactory terms and shall be in full force and effect. (d) unless: The terms of (i) the Company shall have provided to Parent prior written notice at least four business days in advance Borrower’s chapter 11 plan of reorganization (the “Match Right Period” and, such notice, the “Match Right NoticePlan of Reorganization”), advising Parent that the Company intends to take such action () and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); and (ii) during such Match Right Period, if requested by Parent all orders of the Court (as defined in good faiththe DIP Credit Agreement) approving the Plan of Reorganization, the Company Revolving Facility, the Commitment Letter and its Representatives the Fee Letter, or affecting the rights, remedies and obligations of the Administrative Agent and the Lenders hereunder and thereunder, shall be in form and substance acceptable to the Lenders in all material respects. (e) The Plan of Reorganization shall have engaged in good faith negotiations with Parent regarding changes to been confirmed by a final order entered by the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent Court (the “Proposed Changed TermsConfirmation Order”) no later than 11:59 p.m.in form and substance acceptable to the Lenders in all material respects, New York City timeand which has not been stayed by the Court or by any other court having jurisdiction to issue any such stay. The Confirmation Order shall have been entered upon proper notice to all parties to be bound by the Plan of Reorganization, on all as may be required by the last business day Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, order of the Match Right Period Court, and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under any applicable Lawlocal bankruptcy rules. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening EventMoreover, (2i) material revisions the time to appeal the Confirmation Order or to seek review, rehearing or certiorari with respect to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day period.Confirmation Order must have expired,

Certain Conditions. Notwithstanding anything to The initial availability of the contrary contained Credit Facility will be conditioned upon, among other things, satisfaction of conditions precedent in this Agreementaccordance with the Existing Agreement and any others appropriate as a result of the Acquisition. Such conditions shall include, the Company shall not be entitled to make an Adverse Recommendation Change pursuant to Section 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unlesswithout limitation: (ia) the Company The Company, AcquisitionCo and Target shall have entered into a definitive Merger Agreement, in form and substance reasonably satisfactory to the Banks, providing for the Tender Offer and the Merger with a tender offer price and merger price consistent with the cost of the Acquisition previously disclosed in writing by the Borrower to CSI and Chemical; the Merger Agreement shall have been approved by the Boards of Directors of the Company, AcquisitionCo and Target and the Tender Offer and the Merger provided for thereby shall have been recommended by the Board of Directors of Target to Parent prior written notice at least four business days the shareholders of Target; and the Merger Agreement shall be in advance full force and effect. (b) AcquisitionCo shall have acquired concurrently with the “Match Right Period” and, making of the initial Loans on the Closing Date not less than a majority of the issued and outstanding common stock of Target (on a fully diluted basis) and there shall not have been any material change in the number of shares of such noticecapital stock outstanding (on a fully diluted basis). (c) The Banks shall be satisfied that the Credit Facility, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action use of proceeds thereof and the material collateral security therefor comply in all respects with Regulations G and U of the Board of Governors of the Federal Reserve System. (d) The terms and conditions of any such Superior Proposal or details of such Intervening Eventthe Tender Offer (including, as applicable); and (ii) during such Match Right Period, if requested by Parent in good faithwithout limitation, the Company and its Representatives cost of the Acquisition as previously disclosed to Chemical) shall have engaged in good faith negotiations with Parent regarding changes been reasonably acceptable to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or Banks and all documents and materials then filed publicly with respect to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; and (iii) the Company Board Tender Offer and the Merger shall have considered any adjustments to this Agreement (including a change been reasonably acceptable to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day periodAdministrative Agent.

Certain Conditions. Notwithstanding anything Initial Conditions: The availability of the Facilities shall be conditioned upon satisfaction of, among other things, the following conditions precedent (the date upon which all such conditions precedent shall be satisfied, the “Closing Date”) on or before July 31,2005. (a) The Borrower shall have executed and delivered satisfactory definitive financing and guarantee documentation with respect to the contrary Facilities (collectively, the “Credit Documentation”). (b) The Lenders, the Administrative Agent and the Lead Arranger shall have received all fees earned and required to be paid, and all expenses for which invoices have been properly presented, on or before the Closing Date. (c) All governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby, the Borrower’s acquisition (the “Acquisition”) of all of the capital stock of Nxxxxx through a tender offer (the “Tender Offer”) followed by a merger (the “Merger”) of a wholly-owned subsidiary of the Borrower (“Acquisition Sub”) with and into Nxxxxx and the continuing operations of the Borrower and its subsidiaries shall have been obtained and be in full force and effect. (d) The Lenders shall have received (i) satisfactory audited consolidated financial statements for each of the Borrower and Nxxxxx separately for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available and (ii) satisfactory unaudited interim consolidated financial statements for each of the Borrower and Nxxxxx separately for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph as to which such financial statements are available. (e) The Administrative Agent shall have received reasonably satisfactory evidence that the directors of Nxxxxx shall have approved the Acquisition. (f) The Tender Offer documentation (collectively, the “Tender Offer Materials”) shall be in form and substance reasonably satisfactory to the Administrative Agent (including, without limitation, the price paid for shares of Nxxxxx (which price may be in the range of prices previously disclosed to the Administrative Agent by the Borrower or such higher price to which the Administrative Agent may agree), the minimum share tender condition, revocation (or action equivalent thereto) of any Nxxxxx’x shareholders’ rights or similar programs, if any, and any other conditions contained in this the offer to purchase) and shall be in full force and effect, all conditions precedent thereunder to the consummation of the Tender Offer shall have been satisfied or waived (provided such waiver is approved in writing by the Administrative Agent), and any amendment to the Tender Offer Materials shall be reasonably satisfactory in form and substance to the Administrative Agent. The Tender Offer shall have been consummated after the receipt of all necessary governmental, regulatory and third party approvals and the tendering party shall have purchased at least 66-2/3% of each class of issued and outstanding capital stock of Nxxxxx (or such greater percentage as may be necessary to permit the Borrower to effect the Merger without any affirmative vote or approval of any other person or entity). Any state anti-takeover law regulating the Acquisition shall have been complied with or shall have been reasonably determined by the Administrative Agent to be invalid or inapplicable to the Tender Offer and the Merger. At the time of the consummation of the Tender Offer, neither the fair price provisions under any applicable law nor any fair price provisions of the Nxxxxx’x certificate of incorporation shall require a higher price to be paid for shares of Nxxxxx in the Merger than that paid in the Tender Offer. (g) A merger agreement pursuant to which the Merger shall be effected (the “Merger Agreement”) shall have been entered into by Nxxxxx, the Company Borrower and Acquisition Sub, shall not be entitled in form and substance reasonably satisfactory to make an Adverse Recommendation Change pursuant the Administrative Agent and shall be in full force and effect. Any consent of the shareholders of the Borrower which may be required to Section 5.02(fauthorize the Merger shall have been obtained. There shall be no practical or legal impediment to the consummation of the Merger. (h) The Administrative Agent shall have received satisfactory pro forma opening financial statements (“Pro Forma Opening Statements”) giving effect to the Acquisition and Section 5.02(gprojections (“Projections”) or terminate this Agreement pursuant with respect to Section 8.01(f) unless:the Borrower and its subsidiaries, together with such information as the Administrative Agent may reasonably request to confirm the tax, legal, and business assumptions made therein. (i) the Company Termination by Dapsco Inc. of its existing revolving credit facility with Fifth Third Bank and repayment of all amounts outstanding thereunder. (j) The Lenders shall have provided to Parent prior written notice at least four business days received such legal opinions, documents and other instruments as are customary for transactions of this type or as they may reasonably request. On-Going Conditions: The making of each extension of credit shall be conditioned upon (a) the accuracy of all representations and warranties in advance the Credit Documentation (the “Match Right Period” andincluding, such noticewithout limitation, the “Match Right Notice”), advising Parent that the Company intends to take such action (material adverse change and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); and (ii) during such Match Right Period, if requested by Parent in good faith, the Company and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereoflitigation representations) and any other agreements that may be proposed (b) there being no default or event of default in writing by Parent (existence at the “Proposed Changed Terms”) no later than 11:59 p.m.time of, New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, or after giving effect to the making of, such Proposed Changed Termsextension of credit. As used herein and in the Credit Documentation a “material adverse change” shall mean any event, development or circumstance that has had or could reasonably be expected to have a material adverse effect on (a) the failure to make the Adverse Recommendation Change business, assets, property, condition (financial or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations otherwise) or prospects of the Company Board under applicable Law. For the avoidance of doubtBorrower and its subsidiaries taken as a whole, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3b) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event validity or Takeover Proposal, as applicable, enforceability of any of the Credit Documentation or the rights or remedies of the Administrative Agent and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day periodLenders thereunder.

Certain Conditions. Notwithstanding anything The commitment of the Purchasers hereunder is subject to the contrary contained conditions (in this addition to the conditions set forth or referred to elsewhere herein and in the Term Sheet) that (i) except as disclosed in SEC reports filed by CCC prior to the date hereof or otherwise previously disclosed to the Purchasers either (i) in writing by the Sponsor or (ii) as part of the schedules to the Acquisition Agreement (draft copies of which have been provided to the Purchasers on or prior to the date hereof), there shall not have occurred or become known to the Purchasers any event, change or effect since June 30, 2005 that has caused a material adverse effect on the business, financial condition, assets, liabilities or results of operations of CCC and its subsidiaries, taken as a whole (a “Material Adverse Effect”), provided that none of the following shall be taken into account in determining whether there is a Material Adverse Effect (a) changes or effects which are or result from occurrences relating to the United States economy generally or the industries in which CCC operates that do not materially and disproportionately affect CCC, (b) changes or effects which result directly from the announcement of the Acquisition Agreement, the Company shall not be entitled to make an Adverse Recommendation Change pursuant to Section 5.02(fAcquisition or the transactions contemplated thereby, (c) changes or effects which are or result from changes in applicable Laws (as defined in the Acquisition Agreement) after the date of execution of the Acquisition Agreement, or (d) changes or effects which are or result from changes in generally accepted accounting principles after the date of execution of the Acquisition Agreement, (ii) all financial projections concerning CCC and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unless: (i) its subsidiaries, the Company shall have provided to Parent prior written notice at least four business days in advance Issuers and the Transactions (the “Match Right Period” andProjections”) that have been made or will be prepared by or on behalf of you or any of your affiliates, such notice, representatives or advisors and that have been or will be made available to us in connection with the “Match Right Notice”), advising Parent that the Company intends to take such action (Transactions have been and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); and (ii) during such Match Right Period, if requested by Parent in good faith, the Company and its Representatives shall have engaged will be prepared in good faith negotiations with Parent regarding changes based upon assumptions believed by you to be reasonable at the terms of this Agreement intended by Parent so time made (it being understood that an Adverse Recommendation Change would no longer be necessary or projections are subject to cause uncertainties and contingencies and that actual results may differ from such Takeover Proposal to no longer constitute a Superior Proposalprojections), as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement (including a change with respect to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m.Purchaser’s commitment to purchase Purchaser Equity Securities, New York City time, on the last business day such Purchaser Equity Securities constituting at least 5.5% of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, equity of Holdings immediately after giving effect to such Proposed Changed Termsthe Closing calculated on a Fully Diluted Basis, (iv) the Issuers complying in all material respects with all of their respective obligations under this letter, and (v) the negotiation, execution and delivery on or before the Closing Date of the Definitive Agreements in accordance with the terms hereof. For purposes of clarity, the failure Purchasers’ commitment to make purchase the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would Notes hereunder shall not be reasonably likely to be inconsistent with its fiduciary obligations conditioned on the Purchasers’ purchase of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day periodPurchaser Equity Securities.

Certain Conditions. Notwithstanding anything to The Borrower may request, and the contrary contained in this Agreement, the Company Lenders shall not be entitled required to make an Adverse Recommendation Change Committed Advances pursuant to Section 5.02(f2.1.1, for the purpose of acquiring (the "ACQUISITION") a Real Property (a) that, once acquired, qualifies as an Unencumbered Asset (including the previous approval by the Required Lenders pursuant to subsection (vii) of the definition of "Unencumbered Asset"), and (b) without inclusion of which in the Unencumbered Pool, the Borrower would not be in compliance with Section 5.02(g) or terminate 7.4 giving effect to such Advances, if, in addition to the other conditions set forth in this Agreement pursuant to (including Section 8.01(f) unless4.2), all of the following conditions shall be satisfied as of the Funding Date: 4.3.1.1. The Borrower shall be in compliance with Section 7.4 giving effect to the Acquisition and the funding of the Committed Advances; 4.3.1.2. The Borrower shall have previously delivered to the Agent and the Lenders the information required to be delivered to them under the definition of "Unencumbered Asset" as to such Real Property, and such Real Property shall have been approved as eligible for inclusion in the Unencumbered Pool as contemplated by clause (iii) of such definition; 4.3.1.3. The Borrower shall have delivered to the Company Agent a separate Notice of Borrowing with respect to that portion of such Committed Advances that could not be made in compliance with Section 7.4 without giving effect to the inclusion of such Real Property in the Unencumbered Pool (such portion being the "ACQUISITION ADVANCES"); 4.3.1.4. The Borrower shall have delivered to the Agent concurrently with its Notice of Borrowing referred to in Section 4.3.1.3 above, a certificate in the form attached hereto as Exhibit B-5, duly executed by a Senior Officer of the Borrower, describing the Real Property to be acquired, designating such Real Property as an Unencumbered Asset effective upon consummation of the Acquisition, and setting forth the Unencumbered Asset Value of such Real Property as if it were an Unencumbered Asset as of the date of such Notice of Borrowing (the "PRO FORMA UNENCUMBERED ASSET VALUE"); 4.3.1.5. All statements set forth in the certificate referred to in 4.3.1.4 above shall be true and correct as of the date thereof and the Funding Date; 4.3.1.6. The Borrower shall have provided to Parent prior written notice at least four business days the Agent and the Lenders such information as may be reasonably requested by the Agent and the Lenders in advance order to verify the terms, timing and method of payment specified in the contract between a Borrower Party, as purchaser of the Real Property to be acquired, and the seller of such property (the “Match Right Period” and, such notice, the “Match Right Notice”"ACQUISITION AGREEMENT"), advising Parent that the Company intends or to take such action (and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable)determine compliance with this Section 4.3.; and (ii) during such Match Right Period, if requested by Parent in good faith, the Company and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day period.

Certain Conditions. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be entitled to make an Adverse Recommendation Change pursuant to Section 5.02(f) and or Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unless: unless (ix) the Company shall have provided to Parent five Business Days’ prior written notice at least four business days in advance (the “Match Right Period” and, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); and, and (y): (iii) during such Match Right Periodfive Business Day period, if requested by Parent in good faith, the Company and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; applicable; and (iiiii) the Company Board shall have considered in good faith any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or to terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its the fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; Notice; provided that, in such event, each reference in this Section 5.02(h) to a five Business Day period or the Match Right Period fifth Business Day shall be deemed to be a two business day periodthree Business Days or the third Business Day, respectively.

Certain Conditions. Notwithstanding anything (a) The obligations of each Plan Sponsor to consummate the transactions contemplated herein shall be subject to the contrary satisfaction (or waiver by the Plan Sponsors) of each of the following conditions: (i) (x) the Confirmation Order, in a form satisfactory to the Plan Sponsor, shall have been entered by the Bankruptcy Court, which order shall provide for, among other things, the approval, and the execution and delivery by the Xxxxxxx Parties where applicable, of this Plan Sponsorship Agreement, the Plan, and each of the other definitive documents necessary to effect the Reorganization by each Xxxxxxx Party, as applicable, including the First Lien Documents, the Second Lien Documents and the Third Lien Documents, (y) no order staying, reversing, modifying, or amending the Confirmation Order shall be in effect, and (z) none of the Xxxxxxx Parties shall have made a public announcement, entered into an agreement, or filed any pleading, evidencing its intention to support or that otherwise supports any transaction with respect to the reorganization or sale of any of the Xxxxxxx Parties or otherwise shall have taken any action that is materially inconsistent with the transactions contemplated by the Plan or this Plan Sponsorship Agreement or the First Lien Documents, the Second Lien Documents or the Third Lien Documents; (ii) any plan of reorganization of Xxxxxxx shall be consummated only on terms consistent with the Plan and the First Lien Documents, the Second Lien Documents and the Third Lien Documents, and all of the conditions precedent to the confirmation and effectiveness of the Plan and to the execution and delivery by all parties intended to be signatory thereto of the First Lien Documents, the Second Lien Documents and the Third Lien Documents and to the closing of the financings, and consummation of the other transactions contemplated by the foregoing shall have been satisfied, in all material respects, in a manner satisfactory to the Plan Sponsors; (iii) any and all documentation relating to the Plan and the First Lien Documents, the Second Lien Documents and the Third Lien Documents, (including, without limitation, the Plan, any intercreditor agreement between the holders of the Permitted First Lien Indebtedness and the holders of the Convertible Notes, any intercreditor agreement between the holders of the Permitted First Lien Indebtedness and the holders of the Permitted Third Lien Indebtedness, any intercreditor agreement between the holders of the Convertible Notes and the holders of the Permitted Third Lien Indebtedness and the First Lien Documents, the Second Lien Documents and the Third Lien Documents themselves), and the transactions contemplated hereby and thereby and by the Plan, including, without limitation, each of the definitive documents necessary to effect the Reorganization, shall be in form and substance satisfactory to the Plan Sponsors and shall be consistent with the Plan and the exhibits attached thereto, and any and all amendments or modifications to the Plan on or after the initial filing date thereof, or to the proposed forms of the First Lien Documents, the Second Lien Documents and the Third Lien Documents approved by the Plan Sponsors, shall be in form and substance satisfactory to the Plan Sponsors; (iv) the cash payment obligations under (a) the Xxxxxxx Industries, Inc. Hourly Employees Pension Plan and (b) the Fiber Industries, Inc. Retirement Income Plan shall be in an amount acceptable to the Plan Sponsors; (v) the total amount of cash to be distributed on the Effective Date to the holders of Allowed General Administrative Claims (as defined in the Plan) (including cure and section 503(b)(9) claims) shall be no more than $12 million; (vi) each Plan Sponsor shall have received its Applicable Percentage of the Plan Sponsor Fee or such fee shall be paid contemporaneously with the issuance of the Plan Sponsor Shares and the Convertible Notes to the Plan Sponsors as contemplated in Section 2(b)(ii); (vii) the representations and warranties of each of the Xxxxxxx Parties contained in this Plan Sponsorship Agreement and of each of the parties thereto (other than the Plan Sponsors) contained in any of the First Lien Documents, the Second Lien Documents or the Third Lien Documents that are qualified as to materiality, material adverse effect, Material Adverse Effect, or similar qualifiers, and the representation and warranty contained in Section 3(a)(xi) and (xii), shall be true and correct in all respects, on and as of the date hereof and, with respect to the Xxxxxxx Parties that are to continue in existence immediately following the Effective Date, or the successors of Xxxxxxx or new entities created pursuant to the Plan, including the Issuer (the “Surviving Entities”), and any other parties thereto (other than the Plan Sponsors), as of and after giving effect to the Closing and the Effective Date and the execution and delivery of, and consummation of the transactions contemplated by, the Plan and the First Lien Documents, the Second Lien Documents and the Third Lien Documents, with the same force and effect as though made on and as of such date, and (x) the representations and warranties of each of the Xxxxxxx Parties contained in this Plan Sponsorship Agreement and of each of the parties thereto (other than the Plan Sponsors) contained in any of the First Lien Documents, the Second Lien Documents or the Third Lien Documents that are not so qualified shall be true and correct in all material respects on and as of the date hereof and, with respect to the Surviving Entities, and any other parties thereto (other than the Plan Sponsors), as of and after giving effect to the Closing and the Effective Date and the execution and delivery of, and consummation of the transactions contemplated by, the Plan and the First Lien Documents, the Second Lien Documents and the Third Lien Documents, with the same force and effect as though made on and as of such date, (y) each of the other parties to the First Lien Documents, the Second Lien Documents and the Third Lien Documents shall have performed or complied with, in all material respects, its covenants and other agreements required to be performed or complied with under the First Lien Documents, the Second Lien Documents or the Third Lien Documents, as applicable, on or prior to the Effective Date, and (z) Xxxxxxx shall have performed or complied with, in all material respects, its covenants and other agreements required to be performed or complied with under this Plan Sponsorship Agreement and the First Lien Documents, the Second Lien Documents and the Third Lien Documents on or prior to the Effective Date and shall not be in breach of any thereof (and Xxxxxxx or Reorganized Xxxxxxx shall have delivered to each Plan Sponsor a certificate of its Chief Executive Officer or Chief Financial Officer to the effect that each of the conditions specified in this Section 4(a)(vii) is satisfied in all respects); (viii) The First Lien Documents, the Second Lien Documents and the Third Lien Documents shall have been duly executed and delivered by, or shall by court order have become effective and binding upon, and shall be enforceable against, each party thereto and each person or entity purported to be bound thereby. The indebtedness and other obligations of the Xxxxxxx Parties under the Second Lien Documents shall be secured by valid and perfected liens on all of the assets of the Xxxxxxx Parties pursuant to and in accordance with the Second Lien Documents, having the priority contemplated in the preamble to this Plan Sponsorship Agreement.; (ix) the organizational documents of the Xxxxxxx Parties shall be satisfactory in form and substance to the Sponsors, and shall provide for an initial board of directors comprised of 7 members, including four designated by holders of the Convertible Notes, one designated by the holders of First Lien Term Loan pre-petition indebtedness of Xxxxxxx, one designated by the holders of the Second Lien Term Loan pre-petition indebtedness of Xxxxxxx, and the seventh to be the CEO of the Issuer, and that thereafter, (1) five members of the board of directors shall be elected by the vote of the holders of a majority of the voting power of the outstanding shares of New Common Stock and holders of the outstanding Convertible Notes and Permitted Third Lien Indebtedness (with holders of the Convertible Notes and the Permitted Third Lien Indebtedness voting on a “as converted” fully diluted basis), (2) for so long as at least $10,000,000 in aggregate principal amount of Permitted Third Lien Indebtedness remains outstanding, or the aggregate principal amount of the Permitted Third Lien Indebtedness is not less than 50% of the aggregate of the principal amount of the Convertible Notes and the Permitted Third Lien Indebtedness, one member of the board of directors shall be elected by the vote of holders of Permitted Third Lien Indebtedness representing at least a majority of the aggregate principal amount of the outstanding Permitted Third Lien Indebtedness and (3) one member of the board of the directors shall be the then-CEO of the Issuer (except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Issuer); (x) the holders of New Common Stock, Convertible Notes and Permitted Third Lien Indebtedness shall enter into a registration rights agreement which shall provide that following an initial public offering by the Issuer, any such parties holding Common Stock, Convertible Notes and Permitted Third Lien Indebtedness representing in the aggregate at least 10% in voting power of the Common Stock, Convertible Notes and Permitted Third Lien Indebtedness, voting together as a single class on an as-converted basis, shall have demand and piggyback registration rights with respect to shares of New Common Stock of the Issuer owned by such holder; (y) the Convertible Notes to be purchased by the Plan Sponsors pursuant to its Plan Sponsor Commitment shall be issued and distributed in accordance with the Plan and this Plan Sponsorship Agreement pursuant to an exemption from registration under the Securities Act and any state or local law requiring registration for the offer or sale of a security, and (z) other than the Plan Sponsors and any entity that is an underwriter as defined in subsection (b) of Section 1145 of the Bankruptcy Code, subject to the approval of the Bankruptcy Court in the Confirmation Order, the issuance of the Convertible Notes shall qualify for an exemption from registration under the Securities Act and any state or local law requiring registration for the offer or sale of a security; (x) no provision of any applicable law or regulation and no judgment, injunction, decree, or other legal restraint shall prohibit the consummation of the Plan or the transactions contemplated thereby, or the entry into by the parties thereto of this Plan Sponsorship Agreement, the Company First Lien Documents, the Second Lien Documents and the Third Lien Documents and the consummation of the transactions contemplated thereby; and (xi) In the case of each Plan Sponsor, the other Plan Sponsor shall not have defaulted in payment of its Applicable Portion of the Plan Infusion. (b) The obligations of each of the Xxxxxxx Parties to consummate the transactions contemplated herein shall be entitled subject to make an Adverse Recommendation Change pursuant to Section 5.02(fthe satisfaction (or waiver by Xxxxxxx) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unlessof each of the following conditions: (i) the Company Confirmation Order shall have provided been entered by the Bankruptcy Court and (y) the conditions precedent to Parent prior written notice at least four business days the effectiveness of the Plan shall have been satisfied or waived in advance (accordance with the “Match Right Period” and, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); andPlan; (ii) during the representations and warranties of the Plan Sponsors contained in this Plan Sponsorship Agreement that are qualified as to materiality, material adverse effect, or similar qualifiers, and the representations and warranties of the Plan Sponsors contained in Section 3(b)(v), (vi), and (vii), shall be true and correct in all respects, on and as of the date hereof and the Effective Date, with the same force and effect as though made on and as of such Match Right Perioddate (except to the extent that any such representation or warranty is made as of a specified date, if requested by Parent in good faithwhich case such representation or warranty shall be true and correct as of such specified date), and (y) the Company representations and its Representatives warranties of the Plan Sponsor contained in this Plan Sponsorship Agreement that are not so qualified shall be true and correct in all material respects on and as of the date hereof and the Effective Date, with the same force and effect as though made on and as of such date (except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall be true and correct in all material respects as of such specified date), and (z) the Plan Sponsors shall have engaged performed or complied with, in good faith negotiations all material respects, their covenants required to be performed or complied with Parent regarding changes under this Plan Sponsorship Agreement on or prior to the terms Effective Date (and the Plan Sponsors shall each have delivered to Xxxxxxx a certificate to the effect that each of the conditions specified in this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or Section 4(b)(ii) is satisfied in all respects with respect to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicablePlan Sponsor); and (iii) no provision of any applicable law or regulation and no judgment, injunction, decree, or other legal restraint shall prohibit the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day consummation of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) thatPlan or the transactions contemplated thereby, after giving effect to such Proposed Changed Termsor the entry into by the parties thereto of this Plan Sponsorship Agreement, the failure to make First Lien Documents, the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations Second Lien Documents and the Third Lien Documents and the consummation of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day periodtransactions contemplated thereby.

Certain Conditions. Notwithstanding anything It will be a condition of Syntone’s rights hereunder to have Registrable Securities owned by it registered that: (i) Syntone will reasonably cooperate with Outlook by supplying information and executing documents relating to Syntone or the securities of Outlook owned by Syntone in connection with such registration; and (ii) Syntone will enter into such undertakings and take such other actions relating to the contrary conduct of the proposed offering that Outlook or the underwriters may request as being necessary to ensure compliance with federal and state securities laws and the securities laws of any applicable jurisdiction and the rules or other requirements of the applicable exchange. In the event of any registration under the Securities Act of any Registrable Securities pursuant to this Section 7, Outlook will indemnify and hold harmless Syntone, each of its directors, its officers, and its equity holders against such losses, claims, damages or liabilities (including reimbursement for reasonable and documented legal and other expenses) to which Syntone or any such director, officer or equity holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities arise out of or are based upon a Violation; provided, however, that the indemnity agreement contained in this Agreement, the Company shall Section 7.10 will not be entitled apply to make an Adverse Recommendation Change pursuant to Section 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unless: (i) the Company shall have provided to Parent prior written notice at least four business days amounts paid in advance (the “Match Right Period” and, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the material terms and conditions settlement of any such Superior Proposal loss, claim, damage, liability or details action if such settlement is effected without Outlook’s consent, which consent will not be unreasonably withheld, nor will Outlook be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any of such Intervening Eventindemnified parties; and provided, as applicable); and (ii) during such Match Right Periodfurther that Syntone will indemnify and hold harmless Outlook, each of its directors, its officers, and each person, if requested by Parent in good faithany, who controls Outlook within the Company meaning of the Securities Act, and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposalany underwriter, as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f)third party, as applicable, would be reasonably likely selling securities under such registration statement, against such losses, claims, damages or liabilities (including reimbursement for reasonable and documented legal and other expenses) to be inconsistent with its fiduciary obligations which Outlook or any such director, officer, controlling person, underwriter or other third party who may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities arise out of the Company Board under applicable Law. For the avoidance of doubtor are based upon a Syntone Violation, any (1) material changes in the changeseach case, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms extent (and only to the extent) that such Syntone Violation occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any of a Superior Proposal or (3) material revisions to a Takeover Proposal such indemnified parties, provided, however, that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference indemnity agreement contained in this Section 5.02(h) 7.10 will not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without Syntone’s consent, which consent will not be unreasonably withheld; provided, further, that in no event shall the obligations of Syntone in this Section 7.10 exceed the net proceeds received by it from the sale of its Registrable Securities related to the Match Right Period shall be deemed to be a two business day periodmatter in which losses or damages are sought.

Certain Conditions. Notwithstanding anything The obligations of the Plan Sponsors to consummate the Restructuring Transactions pursuant to the contrary contained Plan and on the terms set forth in this AgreementSection 7 are subject to the following conditions: (a) this Agreement shall have become effective in accordance with the provisions of Section 2 hereof; (b) this Agreement shall not have been terminated in accordance with the terms of Section 10 hereof; (c) the Board of Directors of Novation shall have approved the Restructuring Transactions; (d) each of the Definitive Documents shall be in form and substance acceptable to the Plan Sponsors; (e) the Debtors shall have met the Milestones set forth on Exhibit G hereto; (f) With respect to the DIP Facility, the Company Bankruptcy Court shall have entered the Interim Financing Order and Final Financing Order, as applicable, in form and substance acceptable to Plan Sponsors and the Debtors shall be in compliance with the covenants in the DIP Facility Documents; (g) the Debtors shall have obtained entry of an order by the Bankruptcy Court approving the NOL Motion on terms reasonably satisfactory in form and substance to the Plan Sponsors; (h) the Bankruptcy Court shall have entered an order approving the Debtors’ assumption of this Agreement; (i) Plan Sponsor tax counsel Xxxxx Xxxxx LLP shall have issued an opinion that the transactions contemplated by the Plan, individually and in the aggregate, will not be entitled result in the application of Section 382(a) of the Code to make an Adverse Recommendation Change pursuant Novation; (j) With respect to Section 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unlessthe Plan: (i) the Company Bankruptcy Court shall have provided to Parent prior written notice at least four business days in advance (entered the “Match Right Period” andConfirmation Order, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (which shall be a final and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); andnon-appealable order, (ii) during such Match Right Period, if requested by Parent in good faith, all conditions precedent to the Company and its Representatives occurrence of the Plan Effective Date shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; andbeen satisfied; (iii) the Company Board Consenting Noteholders approving the Restructuring Transaction shall have considered provided reasonable and customary releases to the Companies and the Plan Sponsors pursuant to the Plan; (iv) the Debtors shall have received any adjustments necessary regulatory approvals and material third party consents, on terms reasonably satisfactory to this Agreement the Plan Sponsors; and (v) to the extent requested by the Plan Sponsors, the Bankruptcy Court shall have authorized the Debtors to adopt the Tax Preservation Rights Plan for Reorganized Novation and to amend the Novation certificate of incorporation prohibiting transfers of equity of 4.9% or more; (k) for the period prior to the Confirmation Date, there shall have been no material adverse change in the business, results of operations, prospects, condition (financial or otherwise) or assets of the Companies for the period from the Petition Date to the Confirmation Date, and for the period from the Confirmation Date to the Plan Effective Date, there shall have been no material adverse change in the business, results of operations, prospects, condition (financial or otherwise) or assets of the Companies for the period from the Confirmation Date to the Plan Effective Date; requirements; (l) Novation shall have been delisted and not subject to SEC reporting (m) Novation shall have represented and warranted to the Plan Sponsors the amount of net operating losses and capital loss carryovers available (including a change the amount, the year the loss incurred, and the expiration period) and shall have provided to the price terms hereof) Plan Sponsors a detailed capitalization disclosures and a list of its largest shareholders as of the Plan Effective Date as well as its latest financial statements and disclosures around its list of bank accounts, prior taxes paid and any other agreements existing liens; (n) The Exit Funding shall be sufficient to satisfy all payments necessary to implement the Plan and for the Effective Date to occur, including payment in full of all Allowed Other Secured Claims, Allowed Priority Non-Tax Claims, Allowed Priority Tax Claims, and Allowed Administrative Claims (including Allowed Fee Claims to the extent not already satisfied from amounts held in the Professional Fee Escrow Account, and United States Trustee Fee Claims), as well as any outstanding WSFS Fees, but specifically excluding any amounts necessary to pay those amounts set forth on the GUC Schedule. (o) There shall not have been filed proofs of claim against the Companies asserting General Unsecured Claims that may the Plan Sponsors believe in good faith, after consulting with the Companies, to be proposed allowable, in writing by Parent the aggregate, in an amount in excess of 150% of the amount, in the aggregate, set forth on the GUC Schedule. (p) The Board of Directors of Novation shall have selected a Chief Executive Officer for Reorganized Novation that is satisfactory to the “Proposed Changed Terms”) Plan Sponsors and whose employment shall commence no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and Effective Date; and (q) The Companies shall have determined in good faith (after consultation with its outside legal counsel maintained insurance policies deemed necessary or appropriate by the Plan Sponsors, including without limitation, general liability, D&O, E&O and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day periodkey man insurance policies.

Certain Conditions. Notwithstanding anything (a) The obligation of Elan and EIS to consummate the transaction contemplated by the Definitive Agreements shall be subject to conditions precedent customary for transactions of such type, including, but not limited to, the following: (1) (a) Ligand shall have executed and delivered and issued to EIS, the applicable Purchase Agreement, and such other reasonable and customary documents and instruments as provided therein or as EIS may otherwise reasonably request with respect to the contrary contained in this transactions contemplated by Exhibits B and C hereto, (b) Ligand shall have executed and delivered the Tenth Addendum to the Amended Registration Rights Agreement, dated as of June 24, 1994, among Ligand and the Company persons party thereto (the "Registration Rights Agreement"), providing for the registration rights set forth in Exhibit B hereto and (c) with respect to the transactions contemplated by the Additional Purchase Agreement and the License Agreement, Ligand shall have executed and delivered the License Agreement, and such other reasonable and customary documents and instruments as provided therein or as Elan may otherwise reasonably request in respect of the transactions contemplated by Exhibit A hereto, which, in the case of each of clauses (a), (b) and (c), when duly executed and delivered by Ligand shall be valid, binding and enforceable and in full force and effect, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and to general principles of equity, and there shall be no breach or default by Ligand thereunder; (2) there shall not have occurred from the date hereof through and including the Initial Closing Date (as defined in Exhibit B) or the Closing Date, as the case may be, any material adverse change or event that could reasonably be entitled expected to make an result in a material adverse change in the business, assets, liabilities (contingent or otherwise), operations, condition (financial or otherwise), solvency, properties, prospects or material agreements of Ligand and its subsidiaries, taken as a whole (a "Material Adverse Recommendation Change pursuant Change"); (3) Ligand shall not have breached or defaulted in any of its material obligations hereunder and thereunder and its representations herein and therein shall be true and correct in all material respects, as if made on and as of the Initial Closing Date or the Closing Date, as the case may be; (4) no consent, approval or filing (with any governmental authority or otherwise) on the part of Ligand shall be required for the execution, delivery or performance of the Definitive Agreements or the Registration Rights Agreement, or, if required, such approval shall have been obtained and any applicable waiting periods in respect thereof shall have elapsed; and (5) with respect to Section 5.02(fthe transactions contemplated by the Additional Purchase Agreement and the License Agreement, that certain Preferred Share Rights Agreement, dated as of September 13, 1996, between Ligand and Wellx Xxxgo Bank, N.A., as amended from time to time (the "Rights Agreement"), shall have been amended in form and substance reasonably satisfactory to Elan, so that the transactions contemplated by the Definitive Agreements will not require the issuance of any Rights (as defined in the Rights Agreement) thereunder. (b) The obligation of Ligand to consummate the transaction contemplated by the Definitive Agreements shall be subject to conditions precedent customary for transactions of such type, including, but not limited to, the following: (1) (a) EIS shall have executed and delivered to Ligand the applicable Purchase Agreement, and such other reasonable and customary documents and instruments as provided therein or as Ligand may otherwise reasonably request with respect to the transactions contemplated by Exhibits B and C hereto, (b) EIS shall have executed and delivered the Registration Rights Agreement and (c) with respect to the transactions contemplated by the Additional Purchase Agreement and the License Agreement, Elan shall have executed and delivered the License Agreement, and such other reasonable and customary documents and instruments as provided therein or as Ligand may otherwise reasonably request in respect of the transactions contemplated by Exhibit A hereto, which, in the case of each of clauses (a), (b) and Section 5.02(g(c), when duly executed and delivered by Elan or EIS, as the case may be, shall be valid, binding and enforceable and in full force and effect, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and to general principles of equity, and there shall be no breach or default by Elan or EIS, as the case may be, thereunder; (2) neither Elan nor EIS shall have breached or terminate this Agreement pursuant defaulted in any of its material obligations hereunder and thereunder and its representations herein and therein shall be true and correct in all material respects, as if made on and as of the Initial Closing Date or the Closing Date, as the case may be; and (3) no consent, approval or filing (with any governmental authority or otherwise) on the part of Elan or EIS shall be required for the execution, delivery or performance of the Definitive Agreements, or, if required, such approval shall have been obtained and any applicable waiting periods in respect thereof shall have elapsed. (c) In the event that the Definitive Agreements shall not have been executed and delivered on or prior to Section 8.01(f) unless: the later of (i) the Company shall have provided to Parent prior written notice at least four business days in advance (the “Match Right Period” andOctober 31, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (1998 and specifying, in reasonable detail, the reasons for such action and the material terms and conditions of any such Superior Proposal or details of such Intervening Event, as applicable); and (ii) during such Match Right Period, if requested by Parent in good faith, the Company and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to expiration of the terms waiting period under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal1976, as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement amended (including as a change to result of the price terms hereof) and any other agreements that may be proposed in writing material breach or default hereunder by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City timeeither EIS or Elan, on the last business day of one hand, or Ligand, on the Match Right Period and other hand), the non-defaulting party or parties shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect the right to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant Letter of Intent by written notice to Section 8.01(fthe other(s), as applicable, would whereupon the transactions contemplated hereby shall be reasonably likely to be inconsistent with its fiduciary obligations canceled and of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, further force and shall in each case require the Company to deliver to Parent a new Match Right Noticeeffect; provided that, in such eventnotwithstanding the termination of this Letter of Intent, each reference in this Section 5.02(h) party shall remain liable to the Match Right Period other for or in respect of any breach or default which shall be deemed have occurred prior to be a two business day periodsuch date.

Certain Conditions. Notwithstanding anything (a) The obligation of each Shareholder to consummate the sale of the Shares to each Purchaser shall be subject to the contrary contained in this Agreement, satisfaction or waiver by such Shareholder of the Company shall not be entitled to make an Adverse Recommendation Change pursuant to Section 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unlessfollowing conditions: (i) the representations and warranties made by each Purchaser in Section 3 hereof shall be true and correct in all material respects at the Closing Date, and each Purchaser and the Company shall have provided to Parent prior written notice at least four business days performed in advance (the “Match Right Period” and, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the all material terms respects all obligations and conditions of any such Superior Proposal herein required to have been performed or details of such Intervening Event, as applicable); andcomplied with by it on or prior to the Closing; (ii) during such Match Right Period, if requested by Parent in good faith, the Company and its Representatives each Purchaser shall have engaged made the Closing deliveries as provided in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; andSections 2(c)(vi)-(viii); (iii) the Company Board shall have considered filed the Amended and Restated Articles of Incorporation with the Secretary of State of the State of Texas, which Amended and Restated Articles of Incorporation shall be in full force and effect on the Closing Date; (iv) no action, suit, proceeding or investigation by any adjustments Governmental Entity shall be pending or, so far as is known to the Company, the Purchasers or the Shareholders, be threatened, and no Governmental Entity shall have enacted an order or injunction which is in effect, which, in the case of such action, suit, proceeding, investigation, order or injunction, challenges the transactions contemplated by the Transaction Documents or seeks to restrain or prevent the consummation of the transactions contemplated thereunder; (v) the Company shall have obtained any and all consents (including the consent of the lenders required pursuant to the Credit Agreement), permits and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement and the Recapitalization Documents (including a change to as defined in the price terms hereofRecapitalization Agreement) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed TermsRequired Consents”); (vi) no later than 11:59 p.m., New York City time, on the last business day Recapitalization Documents shall have been executed and delivered by each of the Match Right Period and parties thereto; and (vii) the closing of the transactions contemplated in the Recapitalization Agreement shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement occurred pursuant to Section 8.01(f), as applicable, would be reasonably likely to be inconsistent with its fiduciary obligations of the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms thereof. (b) The obligation of a Superior Proposal each Purchaser to consummate the purchase of the Shares shall be subject to the satisfaction or waiver by such Purchaser of the following conditions: (3i) material revisions to a Takeover Proposal that the representations and warranties made by the Company Board had determined no longer constitutes a Superior Proposal, in Section 5 hereof shall constitute a new Intervening Event or Takeover Proposal, as applicablebe true and correct in all material respects at the Closing Date, and shall in each case require the Company shall have performed in all material respects all obligations and conditions herein required to deliver have been performed or complied with by it on or prior to Parent a new Match Right Notice; the Closing; (ii) the representations and warranties made by each Shareholder in Section 4 hereof shall be true and correct in all material respects at the Closing Date, and each Shareholder shall have performed in all material respects all obligations and conditions herein required to have been performed or complied with by it on or prior to the Closing; (iii) the Company shall have made the Closing deliveries as provided thatin Section 2(c)(i); (iv) each Shareholder shall have made the Closing deliveries as provided in Sections 2(c)(ii)-(v); (v) the Company shall have filed the Amended and Restated Articles of Incorporation with the Secretary of State of the State of Texas, which Amended and Restated Articles of Incorporation shall be in full force and effect on the Closing Date; (vi) no action, suit, proceeding or investigation by any Governmental Entity shall be pending or, so far as is known to the Company, the Purchasers or the Shareholders, be threatened, and no Governmental Entity shall have enacted an order or injunction which is in effect, which, in the case of such eventaction, suit, proceeding, investigation, order or injunction, challenges the transactions contemplated by the Transaction Documents or seeks to restrain or prevent the consummation of the transactions contemplated thereunder; (vii) the Company shall have obtained any and all Required Consents; (viii) the Recapitalization Documents shall have been executed and delivered by each reference of the parties thereto; and (ix) the closing of the transactions contemplated in this Section 5.02(h) the Recapitalization Agreement shall have occurred pursuant to the Match Right Period shall be deemed to be a two business day periodterms thereof.

Certain Conditions. Notwithstanding anything It will be a condition of Merck’s rights hereunder to have Registrable Securities owned by it registered that: (i) Merck will reasonably cooperate with Seagen by supplying information and executing documents relating to Merck or the securities of Seagen owned by Merck in connection with such registration; and (ii) Merck will enter into such undertakings and take such other actions relating to the contrary conduct of the proposed offering that Seagen may request as being necessary to ensure compliance with federal and state securities laws and the securities laws of any applicable jurisdiction and the rules or other requirements of the applicable exchange. In the event of any registration under the Securities Act of any Registrable Securities pursuant to this Section 8, Seagen will indemnify and hold harmless Merck, each of its directors, its officers, and its equity holders against such losses, claims, damages or liabilities (including reimbursement for reasonable and documented legal and other expenses) to which Merck or any such director, officer or equity holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities arise out of or are based upon a Violation; provided, however, that the indemnity agreement contained in this Agreement, the Company shall Section 8.3 will not be entitled apply to make an Adverse Recommendation Change pursuant to Section 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unless: (i) the Company shall have provided to Parent prior written notice at least four business days amounts paid in advance (the “Match Right Period” and, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the material terms and conditions settlement of any such Superior Proposal loss, claim, damage, liability or details action if such settlement is effected without Seagen’s consent, which consent will not be unreasonably withheld, nor will Seagen be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any of such Intervening Eventindemnified parties; and provided, as applicable); and (ii) during such Match Right Periodfurther that Merck will indemnify and hold harmless Seagen, each of its directors, its officers, and each person, if requested by Parent in good faithany, who controls Seagen within the Company meaning of the Securities Act, and its Representatives shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposalany underwriter, as applicable; and (iii) the Company Board shall have considered any adjustments to this Agreement (including a change to the price terms hereof) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that, after giving effect to such Proposed Changed Terms, the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f)third party, as applicable, would be reasonably likely selling securities under such registration statement, against such losses, claims, damages or liabilities (including reimbursement for reasonable and documented legal and other expenses) to be inconsistent with its fiduciary obligations which Seagen or any such director, officer, controlling person, underwriter or other third party who may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities arise out of the Company Board under applicable Law. For the avoidance of doubtor are based upon a Merck Violation, any (1) material changes in the changeseach case, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms extent (and only to the extent) that such Merck Violation occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by any of a Superior Proposal or (3) material revisions to a Takeover Proposal such indemnifying parties, provided, however, that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference indemnity agreement contained in this Section 5.02(h) 8.3 will not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without Merck’s consent, which consent will not be unreasonably withheld; provided, further, that in no event shall the obligations of Merck in this Section 8.3 exceed the net proceeds received by it from the sale of its Registrable Securities related to the Match Right Period shall be deemed to be a two business day periodmatter in which losses or damages are sought.

Certain Conditions. Notwithstanding anything (a) The obligation of the Company to consummate the Recapitalization shall be subject to the contrary contained in this Agreement, satisfaction or waiver by the Company shall not be entitled to make an Adverse Recommendation Change pursuant to Section 5.02(f) and Section 5.02(g) or terminate this Agreement pursuant to Section 8.01(f) unlessof the following conditions: (i) the Company representations and warranties made by each Shareholder in Section 4 hereof shall be true and correct in all material respects at the Closing Date as if made on the Closing Date and each Shareholder shall have provided to Parent prior written notice at least four business days performed in advance (the “Match Right Period” and, such notice, the “Match Right Notice”), advising Parent that the Company intends to take such action (and specifying, in reasonable detail, the reasons for such action and the all material terms respects all obligations and conditions of required herein or by any such Superior Proposal other Recapitalization Document to have been performed or details of such Intervening Event, as applicable); andcomplied with by it on or prior to the Closing; (ii) during such Match Right Period, if requested by Parent in good faith, each of the Company and its Representatives Recapitalization Documents shall have engaged in good faith negotiations with Parent regarding changes to the terms of this Agreement intended been executed and delivered by Parent so that an Adverse Recommendation Change would no longer be necessary or to cause such Takeover Proposal to no longer constitute a Superior Proposal, as applicable; andeach other party thereto; (iii) the Company Board shall have considered filed the Amended and Restated Articles of Incorporation with the Secretary of State of the State of Texas, which Amended and Restated Articles of Incorporation shall be in full force and effect on the Closing Date; (iv) no action, suit, proceeding or investigation by any adjustments Governmental Entity shall be pending or, so far as is known to the Company or the Shareholders, be threatened, and no Governmental Entity shall have enacted an order or injunction which is in effect, which, in the case of such action, suit, proceeding, investigation, order or injunction, challenges the transactions contemplated by this Agreement or any other Recapitalization Document or seeks to restrain or prevent the consummation of the transactions contemplated hereunder or thereunder; and (v) the Company shall have obtained any and all consents (including a change the consent of the lenders required pursuant to the price terms hereofCredit Agreement and of Northwestern pursuant to the Northwestern Agreement), permits and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement and the other Recapitalization Documents. (b) The obligation of each Shareholder to consummate the Recapitalization shall be subject to the satisfaction or waiver by such Shareholder of the following conditions: (i) the representations and warranties made by each other Shareholder or the Company in Section 4 or Section 5 hereof shall be true and correct in all material respects at the Closing Date, as if made on the Closing Date, and the Company and each other Shareholder shall have performed in all material respects all obligations and conditions required herein or by any other Recapitalization Document to have been performed or complied with by it on or prior to the Closing under this Agreement; (ii) each of the Recapitalization Documents shall have been executed and delivered by each party thereto other than such Shareholder; (iii) the Company shall have filed the Amended and Restated Articles of Incorporation with the Secretary of State of the State of Texas, which Amended and Restated Articles of Incorporation shall be in full force and effect on the Closing Date; (iv) no action, suit, proceeding or investigation by any Governmental Entity shall be pending or, so far as is known to the Company or the Shareholders, be threatened, and no Governmental Entity shall have enacted an order or injunction which is in effect, which, in the case of such action, suit, proceeding, investigation, order or injunction, challenges the transactions contemplated by this Agreement or any other Recapitalization Document or seeks to restrain or prevent the consummation of the transactions contemplated hereunder or thereunder; (v) the Company shall have obtained any and all consents (including the consent of the lenders required pursuant to the Credit Agreement and of Northwestern pursuant to the Northwestern Agreement), permits and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement and the other Recapitalization Documents; (vi) each of the conditions set forth in Section 6 of the Stock Purchase Agreement (other than the conditions set forth in Section 6(a)(vii) and any other agreements that may be proposed in writing by Parent (the “Proposed Changed Terms”Section 6(b)(ix)) no later than 11:59 p.m., New York City time, on the last business day of the Match Right Period and shall have determined in good faith been satisfied; and (after consultation with its outside legal counsel vii) each of Windward LP and financial advisors) that, after giving effect Windward LLC shall have received federal funds reference numbers or other confirmation satisfactory to such Proposed Changed Terms, it evidencing that the failure to make the Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(f), as applicable, would be reasonably likely purchase price to be inconsistent with its fiduciary obligations of received by it from PPM and NY Life for the Company Board under applicable Law. For the avoidance of doubt, any (1) material changes Share Purchase as provided in the changes, effects, events, occurrences or facts relating to an Intervening Event, (2) material revisions to the terms Stock Purchase Agreement have been sent by wire transfer of a Superior Proposal or (3) material revisions to a Takeover Proposal that the Company Board had determined no longer constitutes a Superior Proposal, shall constitute a new Intervening Event or Takeover Proposal, as applicable, and shall in each case require the Company to deliver to Parent a new Match Right Notice; provided that, in such event, each reference in this Section 5.02(h) to the Match Right Period shall be deemed to be a two business day periodimmediately available funds.