Common use of Right to Terminate Agreement Clause in Contracts

Right to Terminate Agreement. This Agreement may be terminated prior to the Closing: (a) by the mutual consent of Purchaser and Sellers; (b) by either Purchaser or Sellers, upon written notice to the other, if the Bankruptcy Court has not entered the Sale Order on or before February 15, 2005; (c) by either Purchaser or Sellers, upon 30 days written notice to the other, if the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detail; (d) by either Purchaser or Sellers, upon written notice to the other, if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of the conditions set forth in Sections 10 or 11, respectively, shall have not been satisfied (or waived by Sellers or Purchaser, as applicable); provided, however, that this Section 13.1(d) shall not be applicable to the extent of any extension pursuant to Section 14.18; (e) by Sellers, in the event the Sellers accept a competing bid that is a higher or otherwise better offer in accordance with the Procedures Order; provided, however, in accordance with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain in force and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything to the contrary in this Section 13.1, a party shall not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination event.

Right to Terminate Agreement. This Master Agreement may be terminated and the Contemplated Transactions may be abandoned at any time prior to the Closing:Closing (the actual date on which this Master Agreement is terminated being referred to herein as the "Termination Date"): (a) by Buyer or Sellers, if the mutual consent Closing has not occurred on or before September 30, 2000 (the "Outside Date"), unless such failure to close is due to the failure of Purchaser and Sellersthe party seeking to terminate this Master Agreement to comply fully with its obligations under this Master Agreement; (b) by either Purchaser or mutual written consent of Buyer and Sellers, upon written notice subject to any necessary Bankruptcy Court approval; (i) by Buyer, if any of the otherconditions in Article 11 has not been satisfied or if satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Buyer to comply with Buyer's obligations under this Master Agreement), and Buyer has not waived such conditions on or before the Outside Date; or (ii) by Sellers, if any of the conditions in Article 12 has not been satisfied or if satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Sellers to comply with Sellers' obligations under this Master Agreement), and Sellers have not waived such conditions on or before the Outside Date; (d) automatically, if the Bankruptcy Court has not shall have entered the Sale Order on or before February 15, 2005; (c) by either Purchaser or Sellers, upon 30 days written notice to the other, if the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement an order approving a Competing Bid and the written notice describes the breach in reasonable detail; (d) by either Purchaser or Sellers, upon written notice to the other, if the Closing shall have not occurred within 30 Business Days of the entry Contemplated Transactions by the Bankruptcy Court of the Sale Order because any of the conditions set forth in Sections 10 or 11, respectively, shall have not been satisfied (or waived by Sellers or Purchaser, as applicable)Competing Bid are subsequently consummated; provided, however, that this Section 13.1(d) shall not be applicable to the extent of any extension pursuant to Section 14.18;and (e) by SellersBuyer, in the event the Sellers accept a competing bid that if Buyer is a higher or otherwise better offer in accordance not reasonably satisfied with the Procedures Order; providedresults of its additional due diligence concerning the Worsley project, howeverwhich due diligence may include meetings with representatives of Alcoa, in accordance Billiton and/or Bechtel, together with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain in force and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything to the contrary in this Section 13.1, a party shall not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventKaiser representatives.

Right to Terminate Agreement. This Agreement may be terminated prior to terminated, provided the ClosingClosing has not occurred: (a) by By the mutual consent agreement of Purchaser Seller and SellersPurchaser; (b) by either Purchaser or SellersBy Purchaser, upon written notice to at its election, at any time after the otherClosing Date, if any xxxxxxxxns set forth in Section 6 shall not have been satisfied or waived (other than as a result of any failure on the Bankruptcy Court has not entered the Sale Order on part of Purchaser to comply with or before February 15, 2005perform any covenant or agreement of Purchaser set forth in this Agreement or in any other instrument or agreement delivered to Seller by Purchaser); (c) by either Purchaser or SellersBy Seller, upon 30 days written notice to at its election, at any time after the otherClosing Date, if any condition set forth in Section 7 shall not have been satisfied or waived (other than as a result of any failure on the non-terminating party is part of Seller to comply with or perform any covenant or agreement of Seller set forth in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking or in any other instrument or agreement delivered by Seller to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detail;Purchaser); or, (d) by either Purchaser or SellersBy Seller, upon written notice to the otherat its election, if at any time ten (10) days after the Closing shall have Date if Purchaser has not occurred within 30 Business Days of either terminated the entry by Agreement under Section 9.1(b) above or effected the Bankruptcy Court of the Sale Order Closing because any of the conditions set forth in Sections 10 or 11, respectively, shall Section 6 have not been satisfied (or waived by Sellers or Purchaser, as applicable)waived; provided, howeverthat if causing the condition to occur is within Seller's control, that this Seller shall be obligated to cause such condition to occur except if: (i) the condition is Acceptance of Employment in Section 13.1(d6.5 in which event Seller shall only be obligated to meet its general covenant obligations in Section 4; or (ii) shall not be applicable causing such condition to occur would expose Seller to liability in excess of one million dollars ($1,000,000) or require Seller to expend more than one million dollars ($1,000,000). Notwithstanding the extent of any extension pursuant to Section 14.18; (e) by Sellers, in the event the Sellers accept a competing bid that is a higher or otherwise better offer in accordance with the Procedures Order; provided, however, in accordance with the Procedures Order, this Agreement (as modifiedforegoing, if modifiedthe occurrence of such condition is within Seller's control and not excepted under subsections (i) or (ii) above, by any bids submitted by Purchaser at or before the Auction) shall remain in force and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything to the contrary in this Section 13.1, a party shall not have the right to Seller may still terminate this Agreement if such party’s failure and all its obligations and liability hereunder by making payment to fulfill any obligation under this Agreement has been Purchaser of liquidated damages in the cause amount of such termination eventtwo hundred and fifty thousand dollars ($250,000).

Right to Terminate Agreement. This Agreement may be terminated and the transactions contemplated hereby may be abandoned prior to the ClosingClosing only as follows: (a) by the mutual written consent of Purchaser Xxxxx and Sellers;; or (b) by Buyer upon written notice to Sellers in the event that following the delivery of the Remaining Schedules (i) any of the representations or warranties made by a Seller in this Agreement or in any Schedule to this Agreement or in any certificate delivered by a Seller pursuant to this Agreement shall not have been true and correct in any material respect as of the date so made or thereafter by a Seller, or (ii) either Purchaser of the Sellers or CFC shall fail to perform or comply in any material respect with any covenant or agreement to be performed or complied with by a Seller or CFC pursuant to this Agreement prior to or at the Closing; or (c) by Buyer upon written notice to the Sellers in the event that any of the conditions to the obligations of Buyer set forth in ARTICLE VII of this Agreement (other than the condition set forth in Section 7.13) shall not have been satisfied or waived in writing by Xxxxx on or before May 31, 1996; or (d) by the Sellers upon written notice to Buyer in the event that (i) any of the representations or warranties made by Buyer in this Agreement or in any certificate delivered by Buyer pursuant to this Agreement shall not have been true and correct as of the date so made or thereafter breached by Buyer, or (ii) Buyer shall fail to perform or comply with any covenant or agreement to be performed or complied with by Buyer pursuant to this Agreement prior to or at the Closing; or (e) by the Sellers upon written notice to Buyer in the event that any of the conditions to the obligations of Seller set forth in ARTICLE VIII of this Agreement (other than the condition set forth in Section 8.4 or 8.6) shall not have been satisfied or waived in writing by Seller on or before May 31, 1996; or (f) by Buyer or the Sellers, upon written notice to the other, at any time after May 31, 1996 and for any reason in such party's sole and absolute discretion; provided, however, that the right of the Sellers to terminate this Agreement pursuant to this Section 10.1(f) shall not be available if the Bankruptcy Court has not entered failure to consummate the Sale Order Closing on or before February 15such date was caused by or resulted from the failure of a Seller or CFC to perform any of the obligations to be performed by them prior to or as of the Closing under this Agreement or to obtain any of the Required Consents, 2005;or if the failure to consummate the Closing was due to the failure of the parties to receive the H-S-R Approval; or (cg) by either Purchaser Buyer or Sellers, upon 30 days written notice to the other, if the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detail; (d) by either Purchaser or Sellers, upon written notice to the other, if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of the conditions set forth in Sections 10 or 11, respectively, shall have not been satisfied (or waived by Sellers or Purchaser, as applicable); provided, however, that this Section 13.1(d) shall not be applicable to the extent of any extension pursuant to Section 14.18; (e) by Sellers, in the event that (i) the Sellers accept a competing bid Department of Justice or the Federal Trade Commission seeks or advises either party that is a higher or otherwise better offer in accordance with the Procedures Order; provided, however, in accordance with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain in force and effect as a back up bid it intends to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and seek an injunction against the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid this Agreement, (ii) the Federal Trade Commission commences or higher or otherwise better backup competing bid, advises either party that it intends to commence an administrative proceeding relating to the transactions contemplated by this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything or (iii) the H-S-R Approval has not been obtained by the close of business on June 30, 1996; (h) by Buyer upon written notice to the contrary Sellers in the event that for a period exceeding two (2) business days (i) trading in securities generally on the New York Stock Exchange, the International Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or materially limited or minimum prices shall have been established on one or more such exchanges or such market by the SEC, by such exchange or by any other Governmental Authority having jurisdiction, (ii) a banking moratorium shall have been declared by United States federal or New York state authorities, (iii) the United States shall have become engaged in major hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, national or international securities markets or currency exchange rates or controls as to make it, in the reasonable judgment of the Buyer, inadvisable or impracticable to finance the transaction or to proceed with the Closing; 48 (i) by Buyer upon written notice to the Sellers if Buyer properly rejects the Remaining Schedules in accordance with the terms of Section 2.11 of this Section 13.1, a party shall not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination event.Agreement; or

Right to Terminate Agreement. This Agreement may be terminated prior to the Closing:Closing without any costs or damages against the other party, except with respect to the termination fee pursuant to Section 11.3 or the Deposit (if delivered to Seller pursuant to Section 3): (a) by the mutual written consent of Purchaser and SellersLoeb acting in its discretion on behalf of Sellers and the Company at any time prior to the Closing; (b) at any time prior to Closing by either Purchaser if a material Breach of any provision of this Agreement has been committed by Sellers or Sellers, upon written notice to the other, if the Bankruptcy Court Company and such Breach has not entered been waived or cured or by Loeb acting on behalf of Sellers or the Sale Order on Company if a material Breach of any provision of this Agreement has been committed by another Purchaser and such Breach has not been waived or before February 15, 2005cured; (c) by either Purchaser if any condition set forth in Section 8 shall not have been satisfied or Sellers, upon 30 days written notice to waived on or before the other, if the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detailClosing Date; (d) by either Purchaser or Sellers, upon written notice to the other, Loeb acting in its discretion on behalf of Sellers if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of the conditions condition set forth in Sections 10 or 11, respectively, Section 9 shall not have not been satisfied (or waived on or before the Closing Date; or (e) by the Company or Loeb acting in its discretion on behalf of Sellers at any time prior to the Closing if (i) Sellers or Purchaserthe Company have received a Superior Offer and (ii) if any temporary restraining order, as applicable)preliminary or permanent injunction or other order has been issued by any United States federal or state court of competent jurisdiction or other material legal restraint or prohibition has been issued or promulgated by a United States federal or state governmental entity, court or agency in a Proceeding which was initiated by a party other than the Company or Sellers having the effect of compelling consideration of a Superior Offer and sale of the Shares (by any means) to the originator of the Superior Offer. For purposes of this paragraph, the term "Sellers" shall not include the Non-Selling Parties or a Seller acting on behalf of and only at the direction of a Non-Selling Party. Sellers and the Company will control such action and shall consult with Purchaser in the defense of any such action, and, if Sellers and the Company elect not to control such action, Purchaser may undertake the defense of and control such action; provided, however, that this if such action falls within the ambit of Section 13.1(d) 12, then the provisions of Section 12 governing control and settlement of litigation shall not be applicable to the extent of any extension pursuant to Section 14.18; (e) by Sellers, in the event the Sellers accept a competing bid govern. The party that is a higher or otherwise better offer in accordance with control of such action shall use good faith efforts to vigorously defend and will endeavor to promptly resolve any such action; the Procedures Order; provided, however, in accordance with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain in force and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the other parties hereto shall consummate have a right to participate in such action at their sole cost and expense. Sellers and the transactions contemplated Company may settle any monetary portion of such action that does not impose upon Purchaser any monetary obligation or liability other than in de minimus amounts, subject to the limitations set forth in Section 12, but may not settle any portion of such action involving sale or other disposition of the Shares without the prior, written consent of the Purchaser. If Purchaser controls such action, Sellers and the Company shall fully cooperate with such defense and hereby in the event the parties fail consent to close under any settlement or disposition of any such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, action effected by Purchaser that does not impose upon the Sellers’ acceptance Sellers or the Company any monetary obligation or liability other than in de minimus amounts. (f) by Purchaser within ten (10) days of receipt of notice from the Company of its withdrawal of recommendation of the Offer and/or recommendation of a competing bid and Superior Offer. (g) by any party hereto, if the consummation Closing does not occur before the final deadline for Closing set forth in Section 2 herein, provided that the party that seeks to terminate this Agreement is not in Breach of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement. Any Breach of this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything subject to the contrary in this Section 13.1, a party shall not have the right to terminate provisions of this Agreement if for addressing such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventBreach.

Right to Terminate Agreement. This Agreement may be terminated and the Contemplated Transactions may be abandoned at any time prior to the Closing:Closing (the actual date on which this Agreement is terminated being referred to herein as the "TERMINATION DATE"): (a) by Buyer or Seller, if the mutual consent Closing has not occurred on or before December 31, 2002 (the "OUTSIDE DATE"), unless such failure to close is due to the failure of Purchaser and Sellersthe party seeking to terminate this Agreement to comply fully with its obligations under this Agreement; (b) by either Purchaser mutual written consent of Buyer and Seller, subject to any necessary Bankruptcy Court approval; (i) by Buyer, if any condition in Article 11 has not been satisfied or Sellersif satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Buyer to comply with Buyer's obligations under this Agreement), upon written notice and Buyer has not waived such conditions on or before the Outside Date; or (ii) by Seller, if any condition in Article 12 has not been satisfied or if satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Seller to comply with Seller's obligations under this Agreement), and Seller has not waived such conditions on or before the otherOutside Date; or (d) by Buyer or Seller, if the Bankruptcy Court has not entered the Sale Order on or before February 15, 2005; (c) by either Purchaser or Sellers, upon 30 days written notice to the other, if the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detail; (d) by either Purchaser or Sellers, upon written notice to the other, if the Closing shall have not occurred within 30 Business Days entered an order approving a Competing Bid, following the earlier to occur of the entry by the Bankruptcy Court of the Sale Order because any of the conditions set forth in Sections 10 or 11, respectively, shall have not been satisfied following: (or waived by Sellers or Purchaser, as applicable); provided, however, that this Section 13.1(di) shall not be applicable to the extent of any extension pursuant to Section 14.18; (e) by Sellers, in the event the Sellers accept a competing bid that is a higher or otherwise better offer in accordance with the Procedures Order; provided, however, in accordance with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain in force and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such the Competing Bid; or (ii) 30 days after the sale hearing at which the Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with entered the order approving such consummationCompeting Bid. Notwithstanding anything to the contrary in this Section 13.1contrary, a party any termination by Seller shall not have be made only upon consultation with the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventCommittee.

Right to Terminate Agreement. This Agreement may be terminated at any time prior to the Closing: (a) by the mutual consent written agreement of Purchaser Seller and SellersPurchaser; (b) by either Purchaser Seller or Sellers, upon written notice to the otherPurchaser, if the Bankruptcy Court Closing has not entered the Sale Order occurred on or before February 15prior to eighteen (18) months from the date of this Agreement; PROVIDED, 2005HOWEVER, that neither Purchaser nor Seller shall be entitled to terminate this Agreement pursuant to this Section 9.1(b) if such party's failure to fulfill any of its obligations in any material respect under this Agreement has prevented the consummation of the transactions contemplated hereby at or prior to such time; (c) by either Seller or Purchaser, if there shall be in effect any (i) final, non-appealable injunction or binding order of any court or other tribunal having jurisdiction over Seller or Purchaser that prohibits or makes illegal the purchase of the Acquired Stock by Purchaser or Sellers(ii) law or regulation that is enacted or adopted in final form, upon 30 days written notice to that prohibits or makes illegal the other, if purchase of the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detailAcquired Stock by Purchaser; (d) by either Purchaser or SellersPurchaser, upon written notice breach of any material representation, warranty or covenant on the part of Seller set forth in this Agreement, or if any material representation or warranty of Seller shall have become untrue excluding changes in the Business of the Acquired Companies occurring in the Ordinary Course of Business provided such changes are not adverse to the otherBusiness or the Purchaser, if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of in either case such that the conditions set forth in Sections 10 Section 7.1 or 11, respectively, shall have 7.2 would not been be satisfied (or waived by Sellers or Purchaser, as applicablea "TERMINATING SELLER BREACH"); providedPROVIDED, howeverHOWEVER, that that, if such Terminating Seller Breach is curable by Seller through exercise of all reasonable efforts and for so long as Seller continues to exercise such reasonable efforts, Purchaser may not terminate this Agreement under this Section 13.1(d9.1(d) shall not be applicable to for a period of thirty (30) days after written notice; provided Purchaser may terminate before the extent expiry of any extension pursuant to Section 14.18;such thirty (30) days if during the pendency thereof Purchaser's financing is terminated or an uncurable Material Adverse Change occurs; or (e) by SellersSeller, upon breach of any material representation, warranty or covenant on the part of Purchaser set forth in this Agreement, or if any representation or warranty of Purchaser shall have become untrue, in either case such that the event the Sellers accept conditions set forth in Section 8.1 or 8.2 would not be satisfied (a competing bid that "TERMINATING PURCHASER BREACH"); PROVIDED, HOWEVER, that, if such Terminating Purchaser Breach is a higher or otherwise better offer in accordance with the Procedures Order; providedcurable by Purchaser through exercise of all reasonable efforts and for so long as Purchaser continues to exercise such reasonable efforts, however, in accordance with the Procedures Order, Seller may not terminate this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auctionunder this Section 9.1(e) shall remain in force and effect as a back up bid to purchase the Purchased Assets for a period of sixty thirty (30) days following after written notice; and PROVIDED FURTHER that the entry preceding proviso shall not in any event be deemed to extend any date set forth in clause (b) of this Section 9.1. Such right of termination shall be exercised by written notice of termination given by the Sale Order and terminating party to the parties other party hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything to the contrary in this Section 13.1, a party shall not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventmanner hereinafter provided.

Right to Terminate Agreement. This Agreement may be terminated and the Contemplated Transactions may be abandoned at any time prior to the Closing:Closing (the actual date on which this Agreement is terminated being referred to herein as the "TERMINATION DATE"): (a) by Buyer or Seller, if the mutual consent Closing has not occurred on or before the date that is thirty (30) days after the Sale Order is entered (the "OUTSIDE DATE"), unless such failure to close is due to the failure of Purchaser and Sellersthe party seeking to terminate this Agreement to comply fully with its obligations under this Agreement; (b) by either Purchaser mutual written consent of Buyer and Seller, subject to any necessary Bankruptcy Court approval; (i) by Buyer, if any condition in Article 11 has not been satisfied or Sellersif satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Buyer to comply with Buyer's obligations under this Agreement), upon written notice and Buyer has not waived such conditions on or before the Outside Date; or (ii) by Seller, if any condition in Article 12 has not been satisfied or if satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Seller to comply with Seller's obligations under this Agreement), and Seller has not waived such conditions on or before the otherOutside Date; or (d) automatically, if the Bankruptcy Court has not entered the Sale Order on or before February 15, 2005; (c) by either Purchaser or Sellers, upon 30 days written notice to the other, if the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detail; (d) by either Purchaser or Sellers, upon written notice to the other, if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of the conditions set forth in Sections 10 or 11, respectively, shall have not been satisfied (or waived by Sellers or Purchaser, as applicable); provided, however, that this Section 13.1(d) shall not be applicable to the extent of any extension pursuant to Section 14.18; (e) by Sellers, in the event the Sellers accept entered an order approving a competing bid that is a higher or otherwise better offer in accordance with the Procedures Order; provided, however, in accordance with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain in force Competing Bid and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummationthe Competing Bid are subsequently consummated. Notwithstanding anything to the contrary in this Section 13.1contrary, a party any termination by Seller shall not have be made only upon consultation with the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventCommittee.

Right to Terminate Agreement. This Agreement may be terminated at any time prior to the Closing: (a) by the mutual consent written agreement of Purchaser Seller and SellersPurchaser; (b) by either Purchaser Seller or Sellers, upon written notice to the otherPurchaser, if the Bankruptcy Court Closing has not entered the Sale Order occurred on or before February 15prior to December 29, 20052000; provided, however, that neither Purchaser nor Seller shall be entitled to terminate this Agreement pursuant to this Section 10.1(b) if such party's failure to fulfill any of its obligations in any material respect under this Agreement has prevented the consummation of the transactions contemplated hereby at or prior to such time; (c) by either Purchaser Seller or Sellers, upon 30 days written notice to the otherPurchaser, if there shall be any law or regulation enacted or adopted in final form that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited or if any judgment, injunction, order or decree enjoining Seller or Purchaser from consummating the transactions contemplated hereby is entered and such judgment, injunction, order or decree shall have become final and non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detailappealable; (d) by either Purchaser Seller or SellersPurchaser, if this Agreement and/or the transactions contemplated hereby are required to be approved by stockholders of Seller and such transactions are not properly approved at any stockholders' meeting of Seller or any adjournment or postponement thereof by the requisite affirmative vote of the holders of the outstanding shares of Seller Common Stock as required under the DGCL; (e) by Purchaser, upon written notice to breach of any material representation, warranty or covenant on the otherpart of Seller set forth in this Agreement, or if the Closing any representation or warranty of Seller shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of become untrue, in either case such that the conditions set forth in Sections 10 Section 7.1 or 11, respectively, shall have 7.2 would not been be satisfied (or waived by Sellers or Purchaser, as applicablea "Terminating Seller Breach"); provided, however, that that, if such Terminating Seller Breach is curable by Seller through exercise of all reasonable efforts and for so long as Seller continues to exercise such reasonable efforts, Purchaser may not terminate this Agreement under this Section 13.1(d) 10.1(e); and provided, further that the preceding proviso shall not in any event be applicable deemed to the extent extend any date set forth in clause (b) of any extension pursuant to this Section 14.1810.1; (ef) by SellersSeller, upon (i) the failure to occur of any event or the occurrence of any event which would cause or reasonably could be expected to cause, the representation or warranty in Section 4.8 of this Agreement to be or become untrue (a "Financing Breach") or (ii) the breach of any material representation, warranty or covenant on the part of Purchaser set forth in this Agreement, or if any representation or warranty of Seller shall have become untrue, in either case such that the event the Sellers accept conditions set forth in Section 8.1 or 8.2 would not be satisfied (a competing bid that is a higher or otherwise better offer in accordance with the Procedures Order"Terminating Purchaser Breach"); provided, however, in accordance with the Procedures Order, this Agreement (as modifiedthat, if modified, by any bids submitted such Terminating Purchaser Breach is curable by Purchaser at or before the Auction) shall remain in force through exercise of all reasonable efforts and effect for so long as a back up bid Seller continues to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under exercise such approved competing bid or any other higher or otherwise better backup competing bid; provided furtherreasonable efforts, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything to the contrary in this Section 13.1, a party shall Seller may not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been Section 10.1(f); and provided, further, that for purposes of a Financing Breach, reasonable efforts shall include a capital call by Purchaser or its ultimate parent entity; and provided, further, that the cause preceding proviso shall not in any event be deemed to extend any date set forth in clause (b) of such this Section 10.1; or (g) by Seller or Purchaser, in connection with (i) approval by the Board of Directors of the Seller of a definitive agreement concerning an Alternative Transaction, (ii) the execution of a definitive agreement by Seller concerning an Alternative Transaction or (iii) any recommendation by the Board of Directors of Seller to the stockholders of Seller to approve an Alternative Transaction. Such right of termination eventshall be exercised by written notice of termination given by the terminating party to the other party hereto in the manner hereinafter provided.

Right to Terminate Agreement. This Master Agreement may be terminated and the Contemplated Transactions may be abandoned at any time prior to the Closing:Closing (the actual date on which this Master Agreement is terminated being referred to herein as the "Termination Date"): (a) by Buyer or Sellers, if the mutual consent Closing has not occurred on or before September 30, 2000 (the "Outside Date"), unless such failure to close is due to the failure of Purchaser and Sellersthe party seeking to terminate this Master Agreement to comply fully with its obligations under this Master Agreement; (b) by either Purchaser or mutual written consent of Buyer and Sellers, upon written notice subject to any necessary Bankruptcy Court approval; (i) by Buyer, if any of the otherconditions in Article 11 has not been satisfied or if satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Buyer to comply with Buyer's obligations under this Master Agreement), and Buyer has not waived such conditions on or before the Outside Date; or (ii) by Sellers, if any of the conditions in Article 12 has not been satisfied or if satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Sellers to comply with Sellers' obligations under this Master Agreement), and Sellers have not waived such conditions on or before the Outside Date; (d) automatically, if the Bankruptcy Court has not shall have entered the Sale Order on or before February 15, 2005; (c) by either Purchaser or Sellers, upon 30 days written notice to the other, if the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement an order approving a Competing Bid and the written notice describes the breach in reasonable detail; (d) by either Purchaser or Sellers, upon written notice to the other, if the Closing shall have not occurred within 30 Business Days of the entry Contemplated Transactions by the Bankruptcy Court of the Sale Order because any of the conditions set forth in Sections 10 or 11, respectively, shall have not been satisfied (or waived by Sellers or Purchaser, as applicable); provided, however, that this Section 13.1(d) shall not be applicable to the extent of any extension pursuant to Section 14.18Competing Bid are subsequently consummated; (e) by Sellers, in if the event the Sellers accept a competing bid that is a higher or otherwise better offer in accordance parties do not receive all consents, approvals, ratifications, waivers and other authorizations necessary to evidence compliance with the Procedures OrderHSR Act within 5 days of the expiration of any applicable waiting period under the HSR relating to the Contemplated Transactions or if the parties at any time receive notice that such compliance will not be forthcoming or that any required approval has been denied and no further appeals exist; providedand (f) by Buyer, however, in accordance with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before 5:00 p.m., Eastern Time, on June 26, 2000, if Buyer reasonably believes that the Auction) shall remain representations and warranties contained herein are inaccurate in force and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything to the contrary in this Section 13.1, a party shall not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventmaterial respect based on Buyer's due diligence.

Right to Terminate Agreement. This Agreement may be terminated and the Contemplated Transactions may be abandoned at any time prior to the Closing:Closing (the actual date on which this Agreement is terminated being referred to herein as the "Termination Date"): (a) by Buyer or Seller, if the mutual consent Closing has not occurred on or before the date that is thirty (30) days after the Sale Order is entered (the "Outside Date"), unless such failure to close is due to the failure of Purchaser and Sellersthe party seeking to terminate this Agreement to comply fully with its obligations under this Agreement; (b) by either Purchaser mutual written consent of Buyer and Seller, subject to any necessary Bankruptcy Court approval; (i) by Buyer, if any condition in Article 11 has not been satisfied or Sellersif satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Buyer to comply with Buyer's obligations under this Agreement), upon written notice and Buyer has not waived such conditions on or before the Outside Date; or (ii) by Seller, if any condition in Article 12 has not been satisfied or if satisfaction of any such condition is or becomes impossible as of the Outside Date (other than through the failure of Seller to comply with Seller's obligations under this Agreement), and Seller has not waived such conditions on or before the otherOutside Date; or (d) automatically, if the Bankruptcy Court has not entered the Sale Order on or before February 15, 2005; (c) by either Purchaser or Sellers, upon 30 days written notice to the other, if the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detail; (d) by either Purchaser or Sellers, upon written notice to the other, if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of the conditions set forth in Sections 10 or 11, respectively, shall have not been satisfied (or waived by Sellers or Purchaser, as applicable); provided, however, that this Section 13.1(d) shall not be applicable to the extent of any extension pursuant to Section 14.18; (e) by Sellers, in the event the Sellers accept entered an order approving a competing bid that is a higher or otherwise better offer in accordance with the Procedures Order; provided, however, in accordance with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain in force Competing Bid and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummationthe Competing Bid are subsequently consummated. Notwithstanding anything to the contrary in this Section 13.1contrary, a party any termination by Seller shall not have be made only upon consultation with the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventCommittee.

Right to Terminate Agreement. This Agreement may be terminated prior to the Closing: (a) by the mutual written consent of Purchaser and Sellersthe Parties; (b) by either Purchaser or SellersParty after October 31, upon written notice to 2008 (the other, “Termination Date”) if the Bankruptcy Court Closing has not entered taken place by the Sale Order Termination Date, unless the failure of the Closing to take place on or before February 15, 2005such date is attributable to a breach by such Party of any of its obligations set forth in this Agreement; (c) by either Purchaser party if a court of competent jurisdiction or Sellersother Governmental Entity shall have issued a final and nonappealable order, upon 30 days written notice to decree or ruling, or shall have taken any other action, having the othereffect of permanently restraining, if enjoining or otherwise prohibiting any of the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detailTransactions; (d) by either Party pursuant to Section 4.3(c); (e) by the Purchaser if there has been a material breach of any representation, warranty, covenant or Sellersagreement made by the Seller in this Agreement, upon written notice to the other, if the Closing or any such representation or warranty shall have not occurred within 30 Business Days become untrue after the date of the entry by the Bankruptcy Court of the Sale Order because any of this Agreement, in either case such that the conditions set forth in Sections 10 or 11, respectively, shall have Section 5 would not been satisfied (or waived by Sellers or Purchaser, as applicable)be satisfied; provided, however, that if such breach is curable by the Seller through the exercise of its reasonable efforts, then provided that the Seller continues to exercise such reasonable efforts, the Purchaser may not terminate this Agreement under this Section 13.1(d7.1(e) shall not be applicable prior to the extent Termination Date unless such breach is not cured within 30 days of any extension pursuant to Section 14.18notice thereof; (ef) by Sellersthe Seller if there has been a material breach of any representation, warranty, covenant or agreement made by the Purchaser in this Agreement, or if any such representation or warranty shall have become untrue after the date of this Agreement, in either case such that the event the Sellers accept a competing bid that is a higher or otherwise better offer conditions in accordance with the Procedures OrderSection 6 would not be satisfied; provided, however, in accordance with that if such breach is curable by the Procedures OrderPurchaser through the exercise of its reasonable efforts, then provided that the Purchaser continues to exercise such reasonable efforts, the Seller may not terminate this Agreement under this Section 7.1(f) prior to the Termination Date unless such breach is not cured within 30 days of notice thereof; or (as modified, if modified, g) by any bids submitted by Purchaser at or before the Auction) shall remain in force and effect as Seller following receipt of a back up bid to purchase Takeover Proposal which the Purchased Assets for a period Board of sixty days following the entry Directors of the Sale Order Seller determines (after consultation with its financial advisor and independent legal counsel) to be a Superior Proposal; provided, however, that: (A) prior to such termination, the Seller has provided the Purchaser a written notice that describes the Takeover Proposal and the parties hereto shall consummate thereto; (B) within two Business Days following the transactions contemplated hereby delivery of the notice referred to in clause (A) of this sentence, the Purchaser does not propose adjustments in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance terms and conditions of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously the result of which is that the Seller’s Board of Directors reasonably determines (after consultation with its financial advisor and independent legal counsel) that such consummation. Notwithstanding anything to the contrary in this Section 13.1, Takeover Proposal is no longer a party shall not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause Superior Proposal and (C) as a condition of such termination eventby the Seller pursuant to this Section 7.1(g), the Seller shall pay to the Purchaser a fee of $10,000,000 in cash. Such payment shall be made by wire transfer of immediately available funds to an account to be designated by the Purchaser.

Right to Terminate Agreement. This Agreement may be terminated prior to the Closing: (a) by the mutual consent agreement of Purchaser Seller, Xxxxxxx and SellersBuyer; (b) by either Purchaser or Sellers, upon written notice of Xxxxxxx or Buyer to the otherSeller at any time after ninety (90) days after signing, if the Bankruptcy Court Closing shall not have occurred on or prior to such date; provided, however, that the right to terminate this -------- ------- Agreement under this Section 10.1(b) shall not be available to Xxxxxxx or Buyer --------------- if the action of Xxxxxxx or Buyer or any of their Affiliates has not entered been a principal cause of or resulted in the Sale Order failure of the Closing to occur on or before February 15, 2005such date and such action or failure to act constitutes a breach of this Agreement; (c) by either Purchaser or Sellers, upon 30 days written notice of Seller to the otherXxxxxxx and Buyer at any time after ninety (90) days after signing, if the non-terminating party is Closing shall not have occurred on or prior to such date; provided, however, that the right to terminate this -------- ------- Agreement under this Section 10.1(c) shall not be available to Seller if the --------------- action of Seller or any of its Affiliates has been a principal cause of or resulted in material the failure of the Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detailAgreement; (d) by either Purchaser or Sellers, upon written notice of Seller to the otherXxxxxxx and Buyer at any time after July 14, 2000, if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any one or more of the conditions set forth in Sections 10 8.8, 8.9, ------------------ 8.11 or 11, respectively, shall have 8.12 has not been satisfied (or waived on or before July 14, 2000; ------------ provided, however, that Seller may not exercise its right to terminate this -------- ------- Agreement under this Section 10.1(d) if the failure to satisfy such condition or --------------- conditions is attributable to any act or omission of Seller or any officer, director, employee, agent or Affiliate of Seller or any Person acting for or on their behalf; (e) by Sellers written notice of Seller to Xxxxxxx and Buyer at any time after July 31, 2000, if the condition set forth in Section 8.6 has not been satisfied or Purchaser----------- waived on or before July 31, as applicable)2000; provided, however, that Seller may not -------- ------- exercise its right to terminate this Agreement under this Section 13.1(d10.1(e) shall not be applicable if the --------------- failure to the extent satisfy such condition or conditions is attributable to any act or omission of Seller or any extension pursuant to Section 14.18officer, director, employee, agent or Affiliate of Seller or any Person acting for or on their behalf; (ef) by Sellerswritten notice of Seller to Xxxxxxx and Buyer at any time after June 30, 2000, if Buyer has not obtained a commitment from the Financing Lenders sufficient to satisfy the requirements of Section 8.13, or has not waived the ------------ condition set forth in Section 8.13, on or before June 30, 2000; ------------ (g) at any time before the Closing, by Seller or Xxxxxxx or Buyer (for purposes of this Section 10.1(g) only, Xxxxxxx and Buyer shall constitute a --------------- single party), in the event (i) of a material breach hereof by the Sellers accept a competing bid non- terminating party if such non-terminating party fails to cure such breach within five (5) Business Days following notification thereof by the terminating party or (ii) upon notification of the non-terminating party by the terminating party that is a higher the satisfaction of any condition to the terminating party's obligations under this Agreement becomes impossible or otherwise better offer in accordance impracticable with the Procedures Orderuse of commercially reasonable efforts if the failure of such condition to be satisfied is not caused by a breach hereof by the terminating party; and (h) at any time after Rejection but before the Closing, by written notice of Seller to Xxxxxxx and Buyer; provided, however, in accordance with the Procedures Order, this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain in force and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything to the contrary in this Section 13.1, a party shall Seller may not have the exercise -------- ------- its right to terminate this Agreement under this Section 10.1(h) if such party’s the --------------- condition or conduct that gave rise to the right of termination, or the failure to fulfill close is attributable to any obligation under this Agreement has been the cause act or omission of such termination eventSeller or any officer, director, employee, agent or Affiliate of Seller or any Person acting for or on their behalf.

Right to Terminate Agreement. This Agreement may be terminated at any time prior to the Closing: (a) by the mutual consent written agreement of Purchaser Seller and SellersPurchaser; (b) by either Purchaser Seller or Sellers, upon written notice to the otherPurchaser, if the Bankruptcy Court Closing has not entered the Sale Order occurred on or before February 15prior to June 30, 20052001; PROVIDED, HOWEVER, that neither Purchaser nor Seller shall be entitled to terminate this Agreement pursuant to this Section 9.1(b) if such party's failure to fulfill any of its obligations in any material respect under this Agreement has prevented the consummation of the transactions contemplated hereby at or prior to such time; (c) by either Seller or Purchaser, if there shall be in effect any (i) final, non-appealable injunction or binding order of any court or other tribunal having jurisdiction over Seller or Purchaser that prohibits or makes illegal the purchase of the Acquired Stock by Purchaser or Sellers(ii) law or regulation that is enacted or adopted in final form, upon 30 days written notice to that prohibits or makes illegal the other, if purchase of the non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detail;Acquired Stock by Purchaser. (d) by either Purchaser or Sellers, upon written notice Seller (subject to the other, if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of the conditions set forth Seller's compliance in Sections 10 or 11, respectively, shall have not been satisfied (or waived by Sellers certain circumstances with Section 9.2(b)) or Purchaser, as applicable); provided, however, that if this Section 13.1(d) Agreement and the transactions contemplated hereby shall not be applicable to have been approved at the extent of any extension pursuant to Section 14.18Stockholders' Meeting in accordance with the Stockholder Vote Condition; (e) by SellersPurchaser, upon breach of any material representation, warranty or covenant on the part of Seller set forth in this Agreement, or if any representation or warranty of Seller shall have become untrue, in either case such that the conditions set forth in Section 7.1 or 7.2 would not be satisfied (a "TERMINATING SELLER BREACH"); PROVIDED, HOWEVER, that, if such Terminating Seller Breach is curable by Seller through exercise of all reasonable efforts and for so long as Seller continues to exercise such reasonable efforts, Purchaser may not terminate this Agreement under this Section 9.1(e); and PROVIDED FURTHER that the preceding proviso shall not in any event be deemed to extend any date set forth in clause (b) of this Section 9.1; (f) by Seller, upon breach of any material representation, warranty or covenant on the Sellers accept a competing bid that is a higher part of Purchaser set forth in this Agreement, or otherwise better offer in accordance with the Procedures Order; provided, howeverif any representation or warranty of Purchaser shall have become untrue, in accordance with either case such that the Procedures Orderconditions set forth in Section 8.1 or 8.2 would not be satisfied (a "TERMINATING PURCHASER BREACH"); PROVIDED, HOWEVER, that, if such Terminating Purchaser Breach is curable by Purchaser through exercise of all reasonable efforts and for so long as Purchaser continues to exercise such reasonable efforts, Seller may not terminate this Agreement under this Section 9.1(f); and PROVIDED FURTHER that the preceding proviso shall not in any event be deemed to extend any date set forth in clause (as modified, if modified, by any bids submitted b) of this Section 9.1; (g) by Purchaser at under circumstances where (i) Seller's Board of Directors or before any committee thereof withdraws, qualifies, or modifies, or proposes to withdraw, qualify or modify, in a manner adverse to Purchaser, the Auction) shall remain in force approval or recommendation of this Agreement and effect as a back up bid to purchase the Purchased Assets for a period of sixty days following the entry of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby by Seller's Board of Directors, (ii) Seller shall have failed to include in the event Proxy Statement the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon recommendation of Seller's Board of Directors in favor of the Sellers’ acceptance adoption and approval of a competing bid this Agreement and the consummation of the transactions contemplated hereby, or (iii) Seller's Board of Directors or any committee thereof shall have approved or recommended, or proposed to approve or recommend, a Takeover Proposal; or (h) by such Bankruptcy Court approved competing bid Seller (subject to having complied with Section 5.7(d) and its compliance with Section 9.2(b)) or higher Purchaser, if Seller or otherwise better backup competing bidits Affiliates shall have entered into a letter of intent, this Agreement agreement in principle, acquisition agreement or other similar agreement with respect to a Takeover Proposal (a "DEFINITIVE COMPETING AGREEMENT"). Such right of termination shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything exercised by written notice of termination given by the terminating party to the contrary other party hereto in this Section 13.1, a party shall not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventmanner hereinafter provided.

Right to Terminate Agreement. This Agreement may be terminated prior to the ClosingEffective Time without any costs or damages against the other parties, except with respect to the termination fee paid pursuant to Section 7.03: (a) by the mutual written consent of the Company, the Purchaser and Loeb acting in its discretion on behalf of the Sellers; (b) by either Purchaser or Sellers, upon written notice at any time prior to the other, Effective Time by (i) the Purchaser if a material Breach of any provision of this Agreement has been committed by the Bankruptcy Court Company or the Sellers and such Breach has not entered been waived or cured, or (ii) the Sale Order Company or Loeb acting on behalf of the Sellers if a material Breach of any provision of this Agreement has been committed by the Purchaser and such Breach has not been waived or before February 15, 2005cured; (c) by either Purchaser or Sellers, upon 30 days written notice at any time prior to the otherEffective Time by any party hereto if there shall be any applicable domestic law, rule or regulation that makes consummation of the Merger illegal or otherwise prohibited or if any judgment, injunction, order or decree of a court of competent jurisdiction shall restrain or prohibit the consummation of the Merger, and such judgment, injunction, order or decree shall become final and non-terminating party is in material breach of this Agreement and does not cure such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detailappealable; (d) by either Purchaser any party hereto if any condition applicable to another party set forth in Article VI shall not have been satisfied or Sellers, upon written notice waived on or before the Merger Closing Date; (e) by the Company or Loeb acting in its discretion on behalf of the Sellers at any time prior to the otherMerger Closing if (i) the Sellers or the Company have received a Superior Offer and (ii) if any temporary restraining order, preliminary or permanent injunction or other order has been issued by any United States federal or state court of competent jurisdiction or other material legal restraint or prohibition has been issued or promulgated by a United States federal or state governmental entity, court or agency in a Proceeding which was initiated by a party other than the Company or the Sellers having the effect of compelling consideration of a Superior Offer and sale of the Shares (by any means) to the originator of the Superior Offer. The Company and the Sellers will control such action and shall consult with the Purchaser in the defense of any such action, and, if the Closing Company and the Sellers elect not to control such action, the Purchaser may undertake the defense of and control such action; provided, however, that if such action falls within the ambit of Section 9.01, then the provisions of Section 9.01 governing control and settlement of litigation shall govern. The party that is in control of such action shall use good faith efforts to vigorously defend and will endeavor to promptly resolve any such action; the other parties hereto shall have a right to participate in such action at their sole cost and expense. The Company and the Sellers may settle any monetary portion of such action that does not occurred within 30 Business Days of impose upon the entry by Purchaser any monetary obligation or liability other than in de minimus amounts, subject to the Bankruptcy Court of the Sale Order because any of the conditions limitations set forth in Sections 10 Section 9.01, but may not settle any portion of such action involving sale or 11other disposition of the Shares without the prior, respectivelywritten consent of the Purchaser. If the Purchaser controls such action, the Company and the Sellers shall fully cooperate with such defense and hereby consent to any settlement or disposition of any such action effected by the Purchaser that does not impose upon the Company or the Sellers any monetary obligation or liability other than in de minimus amounts; (f) by the Purchaser within ten (10) days of receipt of notice from the Company of its withdrawal of recommendation of the Merger and/or recommendation of a Superior Offer; (g) by any party hereto, if the Merger Closing does not occur on or before the later of (i) October 1, 2002, (ii) if ten (10) days following the filing of the Information Statement with the SEC have elapsed (the "Waiting Period") and the SEC has not been satisfied given the Company notice that it will comment on the Information Statement, the twenty-fifth (25th) day following the expiration of the Waiting Period, or waived (iii) if the SEC elects to comment on the Information Statement, the twenty-fifth day following the date on which all such SEC comments are resolved, which date of comment resolution shall not be later than November 8, 2002 (if such comments are not resolved by Sellers or Purchasersuch date, as applicablethis Agreement may be terminated by any party hereto); provided, however, that this Section 13.1(d) if any such date does not fall on a Business Day, the Merger Closing shall not be applicable to occur on the extent of any extension pursuant to Section 14.18; (e) by Sellers, in the event the Sellers accept a competing bid that is a higher or otherwise better offer in accordance with the Procedures Ordernext following Business Day; provided, howeverfurther, in accordance with that the Procedures Order, party that seeks to terminate this Agreement (as modified, if modified, by any bids submitted by Purchaser at or before the Auction) shall remain is not in force and effect as a back up bid to purchase the Purchased Assets for a period Breach of sixty days following the entry this Agreement. Any Breach of the Sale Order and the parties hereto shall consummate the transactions contemplated hereby in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bid; provided further, however, that upon the Sellers’ acceptance of a competing bid and the consummation of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything subject to the contrary in this Section 13.1, a party shall not have the right to terminate provisions of this Agreement for addressing such Breach; (h) on September 20, 2002 by the Company or Loeb, as Sellers' Representative, if such party’s failure the Additional Deposit has not been made on or prior to fulfill any obligation under this Agreement September 19, 2002 (i) on October 2, 2002 by the Company or Loeb, as Sellers' Representative, if the Merger Postponement Payment has not been the cause of such termination eventmade on or prior to October 1, 2002.

Right to Terminate Agreement. This Agreement may be terminated prior to the Closing: (a) by the mutual consent written agreement of Purchaser Seller, the Company and SellersPurchaser; (b) by Purchaser within thirty (30) days of the date hereof in the event that either (i) Purchaser’s due diligence investigation reveals facts or circumstances that, in Purchaser’s reasonable judgment, individually or in the aggregate have a Material Adverse Effect or (ii) Purchaser or Sellers, upon written notice is not satisfied with the contents of the Disclosure Schedule delivered in accordance with the terms of the preamble to the other, if the Bankruptcy Court has not entered the Sale Order on or before February 15, 2005Section 3 above; (c) by either Purchaser or Sellers, upon 30 Seller and the Company within thirty (30) days written notice to of the other, date hereof if the non-terminating party is in material breach of this Agreement and does not cure Company or Seller receives an Acquisition Proposal during such breach within such 30 days, provided that the party seeking to terminate is not in material breach or default of this Agreement and the written notice describes the breach in reasonable detailperiod; (d) by either Purchaser or Sellersat any time after August 30, upon written notice to the other2005, if the Closing shall have not occurred within 30 Business Days of the entry by the Bankruptcy Court of the Sale Order because any of the conditions condition set forth in Sections 10 Section 7 shall not have been satisfied or 11waived (unless, respectivelyin the case of any such termination by Purchaser pursuant to this Section 9.1(d), the failure of such event to occur shall have not been satisfied (caused by the action or waived failure to act by Sellers or Purchaser, as applicablewhich action or failure to act constitutes a breach of Purchaser’s obligations under this Agreement); provided, however, that this Section 13.1(d) shall not be applicable to the extent of any extension pursuant to Section 14.18; (e) by SellersSeller and the Company at any time after August 30, 2005, if any condition set forth in Section 8 shall not have been satisfied or waived (unless, in the case of any such termination by Seller pursuant to this Section 9.1(e), the failure of such event to occur shall have been caused by the Sellers accept action or failure to act by Seller, which action or failure to act constitutes a competing bid that is breach of Seller’s obligations under this Agreement); (f) by Purchaser if (i) there has been a higher breach by Seller or otherwise better offer the Company of any of its respective representation or warranties, or covenants or agreements set forth in accordance with the Procedures Order; provided, however, in accordance with the Procedures Order, this Agreement (as modifiedthe effect of which is Material Adverse Effect, which breach is not curable or, if modifiedcurable, by any bids submitted is not cured within 30 days after written notice of such breach is given by Purchaser at to Seller, or before (ii) the AuctionBoard of Directors of Seller (x) shall remain in force fails to recommend the approval and effect as a back up bid to purchase the Purchased Assets for a period adoption of sixty days following the entry of the Sale Order this Agreement and the parties hereto shall consummate the transactions contemplated hereby to Seller’s stockholders in accordance with Section 5.3 hereof, or (y) withdraws or amends or modifies in a manner adverse to Purchaser its recommendation or approval in respect of this Agreement or the transactions contemplated hereby; (g) by Purchaser, or Seller and the Company, if Seller’s shareholders do not approve this Agreement and transactions contemplated hereby at the Seller Shareholders’ Meeting; (h) by Seller and the Company if there has been a breach by Purchaser of any of its representations or warranties, covenants or agreements set forth in this Agreement the effect of which is a Material Adverse Effect, which breach is not curable or, if curable, is not cured within 30 days after written notice of such breach is given by Seller to Purchaser; (i) by Seller and the Company at any time prior to the Closing Date in the event the parties fail to close under such approved competing bid or any other higher or otherwise better backup competing bidSeller receives a Superior Proposal; provided further, however, that or (j) by Purchaser upon the Sellers’ acceptance occurrence of a competing bid and an Event of Default (as defined in the consummation BBSB Note) under the terms of the transactions contemplated by such Bankruptcy Court approved competing bid or higher or otherwise better backup competing bid, this Agreement shall be deemed terminated contemporaneously with such consummation. Notwithstanding anything to the contrary in this Section 13.1, a party shall not have the right to terminate this Agreement if such party’s failure to fulfill any obligation under this Agreement has been the cause of such termination eventBBSB Note.