Common use of Termination by Purchaser Clause in Contracts

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser and the transactions contemplated hereby may be abandoned at any time prior to the ClosingEffective Time, if before or after the approval by holders of Shares, by action of the Board of Directors of Purchaser, if: (Aa) Seller the Company shall have breached or failed to comply, perform in any material respect, with respect any of Seller’s the covenants or agreements contained in this Agreement to be complied with or (B) there performed by the Company at or prior to the Effective Time, or any representation or warranty of the Company set forth in this Agreement shall have been a breach inaccurate or incomplete when made; or (b) the board of or inaccuracy in any material respect when made with one or more directors of the representations Company (or warranties a committee thereof) shall have amended, modified or withdrawn in a manner adverse to Purchaser or Merger Sub its approval or recommendation of Seller contained in the Offer, this Agreement andor the Merger or the Board of Directors of the Company, upon request by Purchaser, shall have failed to publicly reaffirm such approval or recommendation within ten business days of such request by Purchaser, or shall have endorsed, approved or recommended any other Acquisition Proposal without terminating this Agreement pursuant to Section 9.4(a), or shall have resolved to do any of the foregoing; or (c) the Company shall have entered into any agreement, letter of intent or agreement in the case of clauses (A) principle with respect to any other Acquisition Proposal and (B) above, such breach, failure or inaccuracy would give rise shall have theretofore failed to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii9.4(a); or (d) only if at the time Company, any of termination (x) Purchaser is not its subsidiaries or any of the other persons or entities described in material breach Section 7.2 as officers, directors, employees, representatives or agents of the Company or of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in subsidiaries shall take any of the actions that would be proscribed by Section 7.02 required 7.2 but for the exception therein allowing certain actions to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time proviso of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15second sentence thereof. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This 16.1 The Purchaser may terminate its obligations under Section 2 of this Agreement may be terminated by Purchaser at any time prior oral or written notice to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any Company following the occurrence of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the following: (a) the Company shall default in any material respect in the performance of any covenant or agreement under this Agreement, which default shall continue for more than three business days following written notice thereof from the Purchaser; (b) the representations or and warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition Company set forth in Section 7.01 3 of this Agreement shall not be true and correct in all material respects as of the date of this Agreement, and on each day thereafter (as if each such date was a Tranche Closing Date), except for the representations and warranties made as of a particular date which representations and warranties need be true and correct only as of such date; (c) the Company shall merge or consolidate with any Person, shall effect any reorganization, or shall sell or substantially all of its assets, or shall enter into any agreement contemplating the same; (d) the Closing of the purchase and sale of the Tranche Shares shall not have been completed by July 31 2004; (e) any director, officer or 5% shareholder shall breach the Lock-Up Agreement; (f) except pursuant to be satisfiedStock Equivalents outstanding on the date of this Agreement and disclosed in the Existing SEC Documents, which breachthe Company issues, failure or inaccuracy is agrees to issue: (i) shares of Common Stock at a purchase price less than the highest of the Tranche Purchase Prices; or (ii) Stock Equivalents with an exercise or conversion price less than the highest of the Tranche Purchase Prices; (g) the Company declares or pays any dividend or distribution to its shareholders, or purchases or redeems any Common Stock; or (h) the Company shall not cured (if capable of being cured retain prior to the Closing) within thirty (30) days (Effective Date an investor relations firm satisfactory to the Purchaser in its sole and absolute discretion or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before continued to retain an investor relations firm satisfactory to the Outside Purchaser in its sole and absolute discretion through the fourth Tranche Closing Date; provided, however, that (A) . 16.2 The termination by the Purchaser may terminate of its obligations under Section 2 of this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may shall not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought liability for any breach or default by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time party in any representation, warranty, covenant or agreement occurring prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause date of such Closing Legal Impedimenttermination. In addition, such termination shall not terminate any of the obligations or agreements of either party under Sections 7.1 and 7.3 of this Agreement.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingClosing Date by Purchaser as follows: (a) if the Sale Order is not entered by the Bankruptcy Court by September 26, 2019; (b) if (A) there has been a material breach by a Seller, which breach such Seller shall have breached or has failed to comply, cure within ten (10) days following its receipt of written notice thereof from Purchaser; (c) (1) if any condition precedent of Purchaser specified in any material respect, with any of Seller’s covenants Sections 4.1 or agreements contained in this Agreement or (B) there 4.3 shall not have been a breach of satisfied or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement andwaived or, in the case reasonable judgment of clauses (A) and (B) abovePurchaser, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 shall have become reasonably unlikely to be satisfied, which breach, unless the failure of such condition to have been satisfied was caused primarily by a material breach by Purchaser or inaccuracy is not cured (if capable of being cured 2) any time on or prior to the Closing) within thirty (30) days (or by the Outside DateDiligence Deadline, if sooner) after receiving notice thereof from Purchaser; provided, provided that Purchaser may terminate this Agreement pursuant has not previously provided a Ready to this Section 9.01(b)(iiProceed Notice, or (3) only if at any time on or prior to the time of termination (x) Purchaser is not in material breach of any of its representationsFinancing Deadline, warranties, covenants or agreements contained in this Agreement and (y) provided that Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing).not previously provided a Financing Clearance Notice; (iid) This Agreement may be terminated by Purchaser if the Bankruptcy Court enters any Order approving any Alternative Transaction or confirming any Chapter 11 Plan involving any Alternative Transaction; (e) if the Closing Date shall not have occurred on or before 5:00 p.m. Pacific time on the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant but only to this Section 9.01(b)(ii) only if at the time extent the Closing has not occurred as of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (the Outside Date for reasons other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill meet its obligations hereunder; (f) if the Chapter 11 Case shall be dismissed or converted to cases under Chapter 7 of the Bankruptcy Code, or if any obligation trustee is appointed in the Chapter 11 Case; or (g) if for any reason (other than Purchaser’s failure to provide adequate assurance of future performance sufficient to satisfy the relevant requirements of Section 365 of the Bankruptcy Code or condition under this Agreement materially contributed applicable nonbankruptcy law and Section 365(c)(1) prohibits assignment without the counterparty’s consent) Sellers are unable, or fail, to assume and assign to Purchaser at the cause of such Closing Legal Impedimentall Purchased Contracts.

Termination by Purchaser. (i) This Agreement may be terminated and the Offer may be abandoned by Purchaser at any time prior to the ClosingAcceptance Time: (a) if (i) the Company Board shall have made a Recommendation Change, whether or not permitted by the terms hereof, (ii) the Company Board approves, endorses or recommends any Takeover Proposal other than the Offer and the Merger, (iii) the Company Board approves, endorses, recommends, or enters into or allows the Company or any of its Subsidiaries to enter into, a merger agreement, letter of intent, agreement in principle, acquisition agreement, purchase agreement, option agreement or other similar agreement with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement), (iv) the Company shall have materially breached the terms of Section 6.5 in any respect adverse to the Purchaser, or (v) if the Company Board fails to expressly publicly reaffirm the Company Board Recommendation within five (5) Business Days after a written request by Parent to do so, or (v) the Company Board resolves to do any of the foregoing; or (b) in the event (i) of a material breach of any covenant or agreement on the part of the Company set forth in this Agreement including, without limitation, Section 6.10(b), (other than a material breach of Section 6.5 which shall be subject to Section 8.3(a) hereof) or a breach of the obligations of the Company set forth in the last sentence of Section 6.18 or (ii) (A) Seller shall have breached that any representation or failed to comply, in any material respect, with any warranty of Seller’s covenants or agreements contained the Company set forth in this Agreement that is qualified as to “materiality” or “Company Material Adverse Effect” shall have been inaccurate when made or shall have become inaccurate as of any scheduled expiration date of the Offer (as if made on such scheduled expiration date) or (B) there that any representation or warranty of the Company set forth in this Agreement that is not so qualified shall have been a materially inaccurate when made or shall have become materially inaccurate as of any scheduled expiration date of the Offer (as if made on such scheduled expiration date), but in either case only to the extent that such breach of or inaccuracy would reasonably be expected to result in any material respect when made with one or more of the representations conditions to the Offer set forth in clause II.(c) or warranties clause II.(d) of Seller contained in this Agreement andAnnex I hereto not being satisfied as of any scheduled expiration date of the Offer; provided, however, that notwithstanding the foregoing, in the case event that such breach of clauses covenant by the Company is, or such inaccuracies in the representations and warranties of the Company are, curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 8.3(b) until the earlier of (Ax) the date of the closing of the Offer and (By) above, such breach, failure or inaccuracy would give rise ten (10) Business Days following the written notice from Parent to the failure Company of a condition set forth in Section 7.01 to be satisfiedsuch breach or inaccuracy, which breach, failure or inaccuracy is not cured as applicable (if capable of it being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, understood that neither Parent nor Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii8.3(b) only if at such breach or inaccuracy by the time Company is cured within such period); or (c) if a Company Material Adverse Effect shall occur and be continuing and has not been cured by the Company prior to the earlier of termination (xi) Purchaser is not in material breach the date of any the closing of its representations, warranties, covenants or agreements contained in this Agreement the Offer and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by ten (10) Business Days after the Company’s receipt of written notice of the occurrence of such event from Parent or Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, (it being understood that (A) neither Parent nor Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii8.3(c) only if at such breach or inaccuracy by the time of termination (x) Purchaser Company is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15cured within such period). (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement and the obligations to consummate the Merger may be terminated by Purchaser at any time prior to the ClosingClosing Date, by Purchaser by written notice to the Company if, prior to the Closing Date: (a) there has been a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement which breach, either individually or in the aggregate, would result in, if occurring or continuing at the Effective Time, the failure of the conditions set forth in Sections 6.2(a) or (b), as the case may be, and which is not cured, within the earlier of (i) the Outside Date and (ii) thirty (30) days following written notice to the Company, or which by its nature or timing cannot be cured within such time period (a “Terminating Company Breach”); provided, however, that, if there is also a Terminating Purchaser Breach, Purchaser may not terminate this Agreement under this Section 7.3; (b) if (i) a Change of Board Recommendation shall have occurred, (ii) the Company or its Board of Directors (or any committee thereof) shall (A) Seller approve, adopt or recommend any Acquisition Proposal or (B) approve or recommend, or enter into or allow the Company or any of its Subsidiaries to enter into, a letter of intent, agreement in principle or definitive agreement for an Acquisition Proposal, (iii) within five (5) Business Days of the date any Acquisition Proposal or any material modification thereto is first published or sent or given to the stockholders of the Company, the Company fails to issue a press release that expressly reaffirms its recommendation to the Company’s stockholders in favor of the Merger; (v) the Company publicly announces a neutral position in a Schedule 14D-9 filed by the Company with the SEC in response to an Acquisition Proposal, (vi) the Company shall have breached or failed to complyinclude in the Proxy Statement distributed to stockholders its recommendation that stockholders approve this Agreement and transactions contemplated hereby, including the Merger, (vii) the Company or its Board of Directors (or any committee thereof) shall authorize or publicly propose any of the foregoing, or (viii) the Company shall have willfully violated Section 5.3 or Section 5.7 in any material respect; provided, with any of Seller’s covenants or agreements contained in however, that Purchaser shall have no right to terminate this Agreement or under this Section 7.3(b) after the Requisite Stockholder Vote has been obtained; (Bc) there shall have been upon a breach of or inaccuracy in any material respect when made with one or more failure of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, 6.2(h); provided such failure or inaccuracy is not cured (if capable the result of being cured prior to the ClosingPurchaser’s material breach of its obligations under Section 5.5(d)(ii) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; providedand provided further, that Purchaser may terminate this Agreement pursuant to not exercise the termination right under this Section 9.01(b)(ii7.3(c) only if at prior to the time date which is three (3) days after the Outside Equity Financing Date in the event that the Equity Financing has not been completed as of the proposed date of termination (xunder this Section 7.3(c) Purchaser is not in material breach other than as a result of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions circumstances set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing7.2(d)(ii) or 7.3(d).; or (iid) This Agreement may be terminated by Purchaser if prior to the Closing EGM, there shall not have occurred a Material Adverse Effect on or before the Company since the date of this Agreement that cannot reasonably be cured by the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to nothing in this Section 9.01(b)(ii7.3(d) only if at shall modify the time of termination (xconditions under Section 6.2(g) Purchaser is not in material breach of or any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions other condition set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15ARTICLE VI. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser and ------------------------ the transactions contemplated hereby may be abandoned at any time prior to the ClosingEffective Time, before or after the approval by holders of Shares, by action of the Board of Directors of Purchaser, if (Ai) Seller the Company shall have breached or failed to comply, perform in any material respect, with respect any of Seller’s the covenants or agreements contained in this Agreement to be complied with or (B) there performed by the Company prior to such date of termination which breach or failure shall not have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closingearlier of (A) within thirty (30) ten business days (following the giving of written notice to the Company of such breach or by the Outside Datefailure and, if soonerapplicable, (B) after receiving notice thereof from Purchaser; providedthe date on which the Offer is then scheduled to expire, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at or any representation or warranty of the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained Company set forth in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required shall have been inaccurate or incomplete when made except for such failures to be satisfied complete or accurate that, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the financial condition, properties, business or results of operations of the Company and its subsidiaries taken as a whole or could prevent or materially delay the transactions contemplated by it (other than those conditions that by this Agreement or impair the ability of Purchaser, Merger Sub, the Company or any of their terms respective affiliates, following consummation of the Offer or the Merger, to conduct any material business or operations in any jurisdiction where they are to be satisfied by actions taken at the Closingnow being conducted, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by the Board of Directors of the Company (or a special committee thereof) shall have amended, modified or withdrawn in a manner adverse to Purchaser if or Merger Sub its approval or recommendation of the Closing shall not have occurred on or before the Outside Date; providedOffer, however, that (A) Purchaser may terminate this Agreement pursuant or the Merger or the Board of Directors of the Company, upon request by Purchaser, shall have failed to this Section 9.01(b)(ii) only if at the time publicly reaffirm such approval or recommendation within ten business days of termination (x) Purchaser is not in material breach of such request by Purchaser, or shall have endorsed, approved or recommended any other Acquisition Proposal, or shall have resolved to do any of its representationsthe foregoing, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at the Company shall have entered into any time prior agreement, letter of intent or agreement in principle with respect to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impedimentother Acquisition Proposal.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the Closing: (a) if (i) an Adverse Recommendation Change shall have occurred, if (ii) the Company Board approves, endorses or recommends any Takeover Proposal other than the Merger, (iii) the Company Board approves, endorses, recommends, or causes the Company or any of its Subsidiaries to enter into, a binding written merger agreement, acquisition agreement, purchase agreement, option agreement or other similar sale agreement to consummate a Takeover Proposal; or (iv) the Company or the Company Board resolves or announces its intention to do any of the foregoing (but, in the case of each of (i), (ii), (iii) or (iv), specifically excluding any Acceptable Confidentiality Agreements); or (b) in the event (A) Seller shall have breached of a breach of any covenant or failed to comply, in any material respect, with any agreement on the part of Seller’s covenants or agreements contained the Company set forth in this Agreement or (B) there that any representation or warranty of the Company set forth in this Agreement shall have been a breach of or inaccuracy in any material respect inaccurate when made with one or more shall have become inaccurate as of the representations or warranties date of Seller contained termination (as if made on such date), but in this Agreement and, in either case only to the case of clauses (A) and (B) above, extent that such breach, failure breach or inaccuracy would give rise reasonably be expected to result in the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure 7.2(a) or inaccuracy is Section 7.2(b) not cured (if capable being satisfied as of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaserdate of termination; provided, however, that notwithstanding the foregoing, in the event that such breach of covenant by the Company is, or such inaccuracies in the representations and warranties of the Company are, curable by the Company, then Purchaser may shall not be permitted to terminate this Agreement pursuant to this Section 9.01(b)(ii8.3(b) only if at until the time expiration of termination a twenty (x20) Business Day period after delivery of written notice from Purchaser is not in material to the Company of such breach of any of its representationsor inaccuracy, warranties, covenants or agreements contained in this Agreement and as applicable (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions being understood that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii8.3(b) during if such breach or inaccuracy by the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. Company is cured within such twenty (iii20) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effectBusiness Day period); provided, further, however, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement pursuant to this Section 8.3(b) if Purchaser’s failure to fulfill Parent or Purchaser is in material breach of any obligation or condition under provision of this Agreement materially contributed to the cause of such Closing Legal ImpedimentAgreement.

Termination by Purchaser. (i) This Purchaser may terminate this Agreement may be terminated by Purchaser at any time prior to the ClosingClosing by written notice to the Seller Representative: (a) upon a material breach of any representation, warranty, covenant or agreement on the part of any Seller set forth in this Agreement or the Ancillary Agreements, or if (A) any representation or warranty of any Seller shall have breached become untrue or failed to complyincorrect, in either case which has rendered the satisfaction of the conditions set forth in Section 7.01(a), Section 7.01(b) or Section 7.01(c) incapable of fulfillment, and such violation or breach has neither been waived by Purchaser nor (if capable of being cured) cured by such Seller within thirty (30) days of the Seller Representative’s receipt of written notice of such violation or breach from Purchaser; provided, however, that the right to terminate this Agreement under this Section 8.04(a) shall not be available to Purchaser if Purchaser is then in material breach of any representation, warranty, covenant or agreement set forth in this Agreement or the Ancillary Agreements that has not been cured; (b) if (i) the Closing shall not have occurred by the Termination Date and (ii) the failure of the Closing to occur on or before the Termination Date is not caused by a failure of Purchaser to perform and comply in all material respect, respects with any of Seller’s its covenants or and agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations Ancillary Agreements that are required to be performed or warranties complied with at or prior to Closing; or (c) if any Seller fails to consummate the Transactions on the fifth (5th) Business Day following the later of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure day on which the last of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it and Section 7.03 (other than those excluding conditions that that, by their terms nature are to be satisfied by actions taken at the Closing, each of ) are satisfied and (B) the date on which is capable of being satisfied at Purchaser delivers written notice to the Closing). (ii) This Agreement may be terminated by Purchaser if Seller Representative that the Closing shall not have occurred on or before condition in the Outside Date; provided, however, that foregoing clause (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement satisfied and (y) Purchaser has satisfied those irrevocably confirmed that it is ready, willing and able to consummate the Transactions and is prepared to satisfy the conditions set forth in Section 7.02 required to and Section 7.03 that cannot be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the until Closing pursuant to Section 10.15on such date. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Purchaser may terminate this Agreement may be terminated by Purchaser at any time prior to the ClosingClosing by written notice to Seller: (a) upon a material breach of any representation, warranty, covenant or agreement on the part of Seller set forth in this Agreement or the Ancillary Agreements, or if (A) any representation or warranty of Seller shall have breached become untrue or failed to complyincorrect, in any material respecteither case which has rendered the satisfaction of the conditions set forth in Section 6.01(a), with any Section 6.01(b) or Section 6.01(c) incapable of fulfillment, and such violation or breach has neither been waived by Purchaser nor (if capable of being cured) cured by Seller within 30 days of Seller’s receipt of written notice of such violation or breach from Purchaser; provided, however, that the right to terminate this Agreement under this Section 7.04(a) shall not be available to Purchaser if Purchaser is then in material breach of any representation, warranty, covenant or agreement set forth in this Agreement or the Ancillary Agreements that has not been cured; (b) if (i) the Closing shall not have occurred by the Termination Date and (ii) the failure of the Closing to occur on or before the Termination Date is not caused by a failure of Purchaser to perform and comply in all material respects with its covenants or and agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations Ancillary Agreements that are required to be performed or warranties complied with at or prior to Closing; or (c) if Seller fails to consummate the Transactions on the fifth (5th) Business Day following the later of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure day on which the last of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it Sections 6.02 and 6.03 (other than those excluding conditions that that, by their terms nature are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) are satisfied and (B) the date on which Purchaser may not terminate this Agreement pursuant delivers written notice to this Section 9.01(b)(iiSeller that the condition in the foregoing clause (A) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation is satisfied and Purchaser has irrevocably confirmed that it is ready, willing and able to consummate the Transactions and is prepared to satisfy the conditions set forth in Sections 6.02 and 6.03 that cannot be satisfied until Closing pursuant to Section 10.15on such date. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated terminated, and the transactions contemplated hereby may be abandoned at any time prior to the Closing by Purchaser if: 8.4.1 at any time prior to the Stockholder Approval having been obtained, (a) the Board shall have made a Change in Recommendation, (b) Seller shall have failed to include the Board Recommendation in the Proxy Statement or (c) Seller shall have materially breached or shall have failed to perform in any material respect its obligations set forth in Section 6.6; 8.4.2 at any time prior to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have has been a breach of any representation, warranty, covenant or inaccuracy in any material respect when agreement made with one or more of the representations or warranties of by Seller contained in this Agreement andAgreement, in or any such representation and warranty shall have become untrue after the case date of clauses (A) and (B) abovethis Agreement, such breach, failure or inaccuracy would give rise to the failure of a that any condition set forth in Section 7.01 7.2.1 or Section 7.2.2 would not be satisfied and such breach or failure to be satisfied, which breach, failure or inaccuracy true is not cured (curable or, if capable of being curable, is not cured prior to the Closingearlier of (i) within thirty 30 days following notice to Seller from Purchaser of such breach or failure and (30ii) days the date that is three (or by 3) Business Days prior to the Outside End Date, if sooner) after receiving notice thereof from Purchaser; provided, provided that Purchaser may shall not have the right to terminate this Agreement pursuant to this Section 9.01(b)(ii) only 8.4.2 if at the time of termination (x) Purchaser is not then in material breach of any of its representations, warranties, covenants or agreements contained in under this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at Agreement; or 8.4.3 the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing Stockholder Approval shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if been obtained at the time of termination (x) Purchaser is not in material breach of Stockholders Meeting duly convened and held or any of its representations, warranties, covenants adjournment or agreements contained in postponement thereof permitted by this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15Agreement. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This 16.1 The Purchaser may terminate its obligations under Section 2 of this Agreement may be terminated by Purchaser at any time prior oral or written notice to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any Company following the occurrence of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the following: the Company shall default in any material respect in the performance of any covenant or agreement under this Agreement, which default shall continue for more than three business days following written notice thereof from the Purchaser; the representations or and warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition Company set forth in Section 7.01 3 of this Agreement shall not be true and correct in all material respects as of the date of this Agreement, and on each day thereafter (as if each such date was a Tranche Closing Date), except for the representations and warranties made as of a particular date which representations and warranties need be true and correct only as of such date; the Company shall merge or consolidate with any Person, shall effect any reorganization, or shall sell or substantially all of its assets, or shall enter into any agreement contemplating the same; the Closing of the purchase and sale of the Tranche Shares shall not have been completed by July 31 2004; any director, officer or 5% shareholder shall sell breach the Lock-Up Agreement; except pursuant to be satisfiedStock Equivalents outstanding on the date of this Agreement and disclosed in the Existing SEC Documents, which breachthe Company issues, failure or inaccuracy is agrees to issue: (i) shares of Common Stock at a purchase price less than the highest of the Tranche Purchase Prices; (ii) shares of capital stock convertible into Common Stock; or (iii) Stock Equivalents with an exercise or conversion price less than the highest of the Tranche Purchase Prices; the Company declares or pays any dividend or distribution to its shareholders, or purchases or redeems any Common Stock; or the Company shall not cured (if capable of being cured retain prior to the Closing) within thirty (30) days (Effective Date an investor relations firm satisfactory to the Purchaser in its sole and absolute discretion or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before continued to retain an investor relations firm satisfactory to the Outside Purchaser in its sole and absolute discretion through the fourth Tranche Closing Date; provided, however, that (A) . 16.2 The termination by the Purchaser may terminate of its obligations under Section 2 of this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may shall not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought liability for any breach or default by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time party in any representation, warranty, covenant or agreement occurring prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause date of such Closing Legal Impedimenttermination. In addition, such termination shall not terminate any of the obligations or agreements of either party under Sections 7.1 and 7.3 of this Agreement.

Termination by Purchaser. (i) This Agreement may be terminated and the Offer may be abandoned by Purchaser at any time prior to the ClosingAcceptance Time: (a) if (i) the Company Board effects a Recommendation Change, (ii) the Company Board fails to reconfirm the Company Board Recommendation if so requested in writing by Parent within ten (10) Business Days following such request, (iii) the Company enters into a definitive agreement with respect to any Takeover Proposal other than the Offer and the Merger; or (iv) the Company or the Company Board resolves or announces its intention to do any of the foregoing, in any case whether or not permitted by Section 6.4. (b) if the Company materially breaches its obligations under Section 6.4 or the Company Board or any committee thereof shall resolve to do any of the foregoing; (c) in the event (A) Seller shall have breached of a breach of any covenant or failed to comply, in any material respect, with any agreement on the part of Seller’s covenants or agreements contained the Company set forth in this Agreement or (B) there that any representation or warranty of the Company set forth in this Agreement shall have been a inaccurate when made or shall have become inaccurate as of any scheduled expiration date of the Offer (as if made on such scheduled expiration date), but in either case only to the extent that such breach of or inaccuracy would reasonably be expected to result in any material respect when made with one or more of the conditions to the Offer set forth in clause (c) or clause (d) of Annex I hereto not being satisfied as of the expiration date of the Offer (after giving effect to any extensions to the Offer exercised under this Agreement pursuant to Section 1.1(d)); provided, however, that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or warranties as of Seller any scheduled expiration date of the Offer, all references to “materiality” or “Company Material Adverse Effect” or “Knowledge of the Company” contained in this Agreement andsuch representations and warranties shall be disregarded; provided further, that notwithstanding the foregoing, in the case event that such breach of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or covenant by the Outside DateCompany is, if sooner) after receiving notice thereof from Purchaser; providedor such inaccuracies in the representations and warranties of the Company are, that Purchaser may curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.01(b)(ii8.3(c) only if at until the time earlier to occur of termination (x1) Purchaser is not in material the expiration of a thirty (30) day period after delivery of written notice from Parent to the Company of such breach of any of its representationsor inaccuracy, warrantiesas applicable, covenants or agreements contained in this Agreement (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Parent and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii8.3(c) during if such breach or inaccuracy by the pendency of any Legal Proceeding brought Company is cured within such thirty (30) day period); provided further, however, that breaches contemplated by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15.8.3(b) above shall be governed by Section 8.3(b) and not by this Section 8.3(c); or (iiid) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment Company Material Adverse Effect shall occur and be in effect; provided, that Purchaser may continuing and has not rely upon this Section 9.01(b)(iiibeen cured by the Company within thirty (30) to terminate this Agreement if Purchaserdays after the Company’s failure to fulfill any obligation or condition under this Agreement materially contributed to receipt of written notice of the cause occurrence of such Closing Legal Impedimentevent from Parent or Purchaser.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser and ------------------------ the transactions contemplated hereby may be abandoned at any time prior to the ClosingEffective Time, before or after the approval by holders of Shares, by action of the Board of Directors of Purchaser, if (Ai) Seller the Company shall have breached or failed to comply, perform in any material respect, with respect any of Seller’s the covenants or agreements contained in this Agreement to be complied with or (B) there performed by the Company prior to such date of termination which breach or failure shall not have been a breach cured prior to the earlier of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) five business days following the giving of written notice to the Company of such breach or failure and (B) above, such breach, failure or inaccuracy would give rise two business days prior to the failure date on which the Offer is then scheduled to expire, or any representation or warranty of a condition the Company set forth in Section 7.01 this Agreement shall have been inaccurate or incomplete when made except for such failures to be satisfiedcomplete or accurate that, which breachindividually or in the aggregate, failure could not reasonably be expected to have a material adverse effect on the financial condition, properties, business or inaccuracy is not cured (if capable results of being cured prior to operations of the Closing) within thirty (30) days (Company and its subsidiaries taken as a whole or could prevent or materially delay the transactions contemplated by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at or impair the time ability of termination (x) Purchaser is not in material breach of Purchaser, Merger Sub, the Company or any of its representationstheir respective affiliates, warrantiesfollowing consummation of the Offer or the Merger, covenants to conduct any material business or agreements contained operations in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms any jurisdiction where they are to be satisfied by actions taken at the Closingnow being conducted, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by the Board of Directors of the Company (or a special committee thereof) shall have amended, modified or withdrawn in a manner adverse to Purchaser if or Merger Sub its approval or recommendation of the Closing shall not have occurred on or before the Outside Date; providedOffer, however, that (A) Purchaser may terminate this Agreement pursuant or the Merger or the Board of Directors of the Company (or a special committee thereof), upon request by Purchaser, shall fail to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of reaffirm such approval or recommendation, or shall have endorsed, approved or recommended any other Acquisition Proposal, or shall have resolved to do any of its representationsthe foregoing, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may if the Company or any of the other persons or entities described in Section 7.2 shall take any actions that would be terminated proscribed by Purchaser at any time prior Section 7.2 but for the exception therein allowing certain actions to the Closing, be taken if a final, non-appealable Closing Legal Impediment shall be required by fiduciary obligations under applicable law as advised in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impedimentwriting by counsel.

Termination by Purchaser. Purchaser may terminate this Agreement by notice in writing to Seller: (ia) This Agreement may be terminated by Purchaser at if any time prior to the Closing, if (A) representation and warranty of Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements Guarantor contained in this Agreement fails to be true and accurate or (B) there shall have been a breach of or inaccuracy in is breached such that any material respect when made with one or more of the representations conditions set forth in Sections 6.1(a)(i) or warranties of 6.1(a)(ii) would not be satisfied or Seller or Guarantor breaches, or fails to comply with, its covenants, agreements or obligations contained in this Agreement and, in such that the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to 6.1(a)(iii) would not be satisfied, which breachand, in each case, such failure or inaccuracy breach either cannot be cured or continues uncured for 10 Business Days (or until the Termination Date, if earlier) after the date on which Purchaser provides Seller with written notice of such failure or breach; provided, however, that if Seller can reasonably expect to cure such failure or breach prior to the Termination Date (and Seller confirms in writing to Purchaser that Seller is continuing to exercise commercially reasonable efforts to cause such failure or breach to be cured), Purchaser may not terminate this Agreement on account of such failure or breach prior to the Termination Date (and then, Purchaser may only terminate this Agreement to the extent that such failure or breach is not cured on or before the Termination Date); or (b) upon the Termination Date, if capable of being cured Competition Act Approval has not been obtained on or prior to such date; provided, however, that if Competition Act Approval has not been obtained on or prior to such date, Purchaser shall have the option prior to the Closing) within thirty (30) Termination Date to extend the Termination Date by up to 30 days (or by and it being agreed that five Business Days prior to the Outside Termination Date, if soonerPurchaser shall advise Seller in writing whether it elects to postpone the Termination Date, failing which Purchaser shall be deemed to have waived its option to extend) after receiving notice thereof from Purchaser; provided, however, that Purchaser may terminate this Agreement pursuant to the maximum aggregate number of days of extension past the Termination Date under this Section 9.01(b)(ii6.2(b) only and Section 6.4(b) shall be 30; or (c) if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those the conditions set forth in Section 7.02 required to be satisfied by it 6.1 (other than those conditions that which by their terms nature are to be satisfied by actions taken at Closing and other than those covered in Section 6.2(a)), have not been satisfied in all material respects or waived or will be impossible or impractical to satisfy, with the Closinguse of commercial reasonable efforts, on or prior to the Termination Date, in each case, provided, however, that Purchaser shall not be entitled to terminate this Agreement if the failure or impossibility of satisfaction of the condition was as a result of a breach by Purchaser or Parent of any of its covenants, agreements or obligations under this Agreement. Upon termination of this Agreement by Purchaser pursuant to this Section 6.2, each of which is capable Purchaser and Parent shall be released from all of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Dateits obligations under this Agreement; provided, however, that the following provisions shall survive: this Section 6.2, Section 7.7 (AConfidentiality), Section 7.8 (Guarantees) Purchaser may terminate and Article 9 (Miscellaneous). Termination of this Agreement pursuant shall not relieve any Party from liability for fraud or willful breach or for any breach of this Agreement occurring prior to termination. Purchaser's right of termination under this Section 9.01(b)(ii) only if at 6.2 is in addition to any other rights it may have under this Agreement, and the time exercise of a right of termination (x) Purchaser is will not in material breach be an election of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15remedies hereunder. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingClosing Date: (a) if, prior to the time the Requisite Stockholder Approval is obtained, the Board (acting upon the recommendation of the Special Committee) fails to make, withdraws, modifies or amends in any manner adverse to Purchaser, the Board Recommendation; (b) if (Ai) Seller the Special Committee or the Board (acting upon the recommendation of the Special Committee) approves, endorses or recommends a Superior Proposal, (ii) a tender offer or exchange offer for any outstanding shares of capital stock of the Company is commenced and the Special Committee or the Board (acting upon the recommendation of the Special Committee) fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (for purposes hereof, taking of no position with respect to the acceptance of such tender offer or exchange offer by its stockholders shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer, or (iii) the Company (acting upon the recommendation of the Special Committee), the Special Committee or the Board (acting upon the recommendation of the Special Committee) publicly announces its intention to do any of the foregoing; (c) if the Company shall have breached or failed to comply, in any material respect, with any of Seller’s its representations, warranties, covenants or agreements contained in this Agreement or Agreement, which breach (Bi) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure 5.1 or inaccuracy is Section 5.2 and (ii) has not been cured (if capable of being cured prior to by the Closing) Company within thirty (30) days (or by Business Days after the Outside Date, if sooner) after receiving Company’s receipt of written notice thereof of such breach from Purchaser; provided, that Purchaser may shall not have a right to terminate this Agreement pursuant to this Section 9.01(b)(ii7.3(c) only if at the time of termination (x) Purchaser is not then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants agreement or agreements covenant contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing).Agreement; or (iid) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this First Tranche Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not has been terminated in material breach of any of accordance with its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15terms. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Purchaser may terminate this Agreement may be terminated by Purchaser at any time prior to the Closing, if Closing Date if: (Aa) there has been a material breach by Seller shall have breached or failed to comply, in any material respect, with of any of Seller’s covenants its representations or agreements warranties contained in this Agreement or (B) there shall have been a which breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured within ten (if capable of being cured prior to the Closing10) within thirty Business Days after written notice thereof; (30b) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in there has been a material breach of any of its representations, warranties, the covenants or agreements contained set forth in this Agreement and on the part of Seller, which breach is not curable or, if curable, is not cured within. ten (y10) days after written notice of such breach is given by Purchaser has satisfied those to Seller; (c) the conditions to the obligations of Purchaser set forth in Section 7.02 required 7.2 shall not have been waived or satisfied on or before the Termination Date or such earlier date as may be specified therefore; (d) the Bid Procedure Order, including the Break-up Fee and the Expense Reimbursement Fee, is not approved by the Bankruptcy Court within twenty (20) days of the Filing Date; (e) the Sale Order, including the Break-up Fee and the Expense Reimbursement Fee, is not approved by the Bankruptcy Court within forty (40) days of the Filing Date; (f) there shall be in effect a final non-appealable court order restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; (g) the entry of an order by the Bankruptcy Court authorizing the sale of the Purchased Assets of Seller to be satisfied by it (any entity other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing).Buyer; or (iih) This Agreement may the Closing Date shall not have occurred on or prior to the Termination Date; provided, however, that the right to terminate shall not be terminated by Purchaser available under this Section 9.3(h) if the Closing shall not have occurred on or before by such date as a result of the Outside Date; provided, however, that (A) failure of Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of fulfill any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition obligations under this Agreement materially contributed to the cause of such Closing Legal ImpedimentAgreement.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingClosing Date by Purchaser as follows: (a) if (i) any Seller or any Affiliate of any Seller seeks or otherwise takes material steps in furtherance of, or does not use commercially reasonable efforts to oppose any other Person in seeking, an Order of the Bankruptcy Court dismissing the Chapter 11 Cases or converting the Chapter 11 Cases to a petition for relief under Chapter 7 of the Bankruptcy Code, (ii) any Seller or any Affiliate of any Seller seeks or otherwise takes material steps in furtherance of, or does not use commercially reasonable efforts to oppose any other Person in seeking, the entry of an Order by the Bankruptcy Court appointing a trustee in the Chapter 11 Cases or an examiner with enlarged powers relating to the operation of the Business, (iii) the Bankruptcy Court orders, for any reason, an Order of a type identified in clause (i) or (ii) above or (iv) the Bankruptcy Court enters an order pursuant to section 362 of the Bankruptcy Code lifting the automatic stay with respect to any material Purchased Assets; (b) if (i) the Procedures Order is (A) Seller shall have breached amended, modified or failed to comply, in any material respect, with any of Sellersupplemented without the Purchaser’s covenants or agreements contained in this Agreement prior written consent or (B) there shall have been voided, reversed or vacated or is subject to a breach of stay or inaccuracy in any material respect when made with one or more (ii) following entry by the Bankruptcy Court of the representations or warranties of Seller contained in this Agreement andSale Order, in the case of clauses Sale Order is (A) and amended, modified or supplemented in any way without the Purchaser’s prior written consent or (B) abovevoided, reversed or vacated or is subject to a stay; provided, that with respect to a termination of this Agreement pursuant to clause (i)(A) or clause (i)(B) of this Section 14.4(b), Purchaser may exercise such breachtermination right only within ten (10) Business Days of such amendment, failure modification or inaccuracy would give rise to supplementation; (c) if the failure of Sale Order does not become a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or Final Order by the Outside Date, ; (d) if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not then in material breach of any provision of its this Agreement and there has been a material breach by Sellers of any of Sellers’ representations, warranties, covenants or agreements contained agreements, which breach would result in this Agreement and (y) Purchaser has satisfied those conditions set forth the failure of any condition specified in Section 7.02 required 4.2 to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the ClosingClosing and, each which breach Sellers have failed to cure on or before the earlier of which is capable (i) within ten (10) days following its receipt of being satisfied at the Closing). written notice thereof from Purchaser or (ii) This Agreement may be terminated by Purchaser the Outside Date; (e) if the Bankruptcy Court enters any Order approving any Alternative Transaction or confirming any chapter 11 plan involving any Alternative Transaction; or (f) if the Closing Date shall not have occurred on or before 5:00 p.m. New York time on the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant but only to this Section 9.01(b)(ii) only if at the time extent the Closing has not occurred as of termination (x) Purchaser is not in material breach of the Outside Date for reasons other than Purchaser’s failure to perform or comply with any of its representationsthe covenants, warranties, covenants agreements or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required hereof to be satisfied performed or complied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated and the Offer, if commenced, shall be terminated forthwith by action of the Board of Managers of Purchaser at any time prior to the ClosingAcceptance Date, if if: (Aa) Seller (i) there shall have occurred a Company Adverse Recommendation Change or (ii) Company shall have otherwise breached or failed to comply, Section 4.2 in any material respect; or (b) a tender offer or exchange offer that, if successful, would result in any Person or “group” becoming a “beneficial owner” (such terms having the meaning in this Agreement as is ascribed under Regulation 13D under the Exchange Act) of 66.67% or more of the outstanding Shares is commenced (other than by Purchaser or an Affiliate of Purchaser) and the Board of Directors of Company recommends that the shareholders of Company tender their shares in such tender or exchange offer; or (i) there shall have occurred a Company Material Adverse Effect or (ii) there has been a breach by Company of any representation, warranty, covenant or agreement contained in this Agreement that would, individually or aggregated with all such breaches, reasonably be expected to cause a failure to meet any of Seller’s the conditions of Annex I and is not curable or, if curable, is not cured within twenty (20) business days after written notice of such breach is given by Purchaser to Company; provided that Purchaser shall not have the right to terminate this Agreement pursuant to this Section 5.4(c)(ii) if Purchaser is then in material breach of any of its respective covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case if such breach is capable of clauses (A) and (B) abovebeing cured, such breach, failure breach has not been cured; or (d) due to circumstances or inaccuracy occurrences that if occurring after the Launch Date would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured make it impossible (if capable and therefore incapable of being cured prior to the ClosingTermination Date) within thirty (30) days (to satisfy one or by more of the Outside Dateconditions set forth in Annex I hereto, if sooner) after receiving notice thereof from PurchaserPurchaser shall have failed to commence the Offer on or prior to the date provided therefore in Section 1.1; provided, provided that Purchaser may shall not have the right to terminate this Agreement pursuant to this Section 9.01(b)(ii5.4(d) only if at the time of termination (x) Purchaser is not then in material breach of any of its representations, warranties, respective covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closingand, each of which if such breach is capable of being satisfied at the Closing)cured, such breach has not been cured. (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser Purchaser, at its option, at any time prior to the Closing, if Closing (Aexcept as provided in clause (v) below) if: (i) Seller shall have breached or has failed to comply, comply in any material respect, respect with any of Seller’s its respective covenants or agreements contained in this Agreement herein or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained herein shall be false in any material respect; (ii) any conditions to the obligations of Purchaser contained herein shall not have been satisfied or occurred on or before the Closing Date (or such earlier date as may be specifically set forth in this Agreement andAgreement); (iii) there shall be any actual or threatened action or proceeding by or before any court or other Governmental Authority which shall seek to restrain, prohibit or invalidate the Acquisition and which, in the case judgment of clauses Purchaser, made in good faith, after consulting with counsel, makes it inadvisable to proceed with the Acquisition; (Aiv) and (B) abovethe Acquisition is disapproved by any regulatory authority whose approval is required to consummate the Acquisition or if, in the reasonable judgment of Purchaser, after consulting with counsel, there is a substantial likelihood that any such breach, failure approval will not be obtained or inaccuracy would give rise to the failure of will be obtained only upon a condition set forth or conditions which are unsatisfactory to Purchaser and that therefore it is inadvisable to proceed with the Acquisition; (v) Purchaser elects in Section 7.01 its sole, absolute and unqualified discretion to be satisfied, which breach, failure terminate this Agreement by providing a written notice of such termination to Seller on or inaccuracy is not cured before the last to occur of (if capable i) forty-five days from the date of being cured prior to the Closingthis Agreement or (ii) within thirty (30) days after delivery of Seller's Schedules in accordance with Section 17 hereof; (or vi) the closing of the transaction contemplated by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided____________________, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.152005. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser and the transactions contemplated hereby may be abandoned at any time prior to the Closing, whether before or after the approval by the stockholders of Seller referred to in Section 8.1(a), by Purchaser (i) if the Seller Board shall have (A) failed to recommend the Acquisition Proposal to the Seller's stockholders, (B) withdrawn or modified or qualified in a manner adverse to Purchaser its recommendation of the Acquisition Proposal (including by express communication to the Seller's stockholders or by refusing to call the Seller Special Meeting or mail the Proxy Statement or submit the matters to a vote of the Seller's stockholders), (C) failed to reconfirm its recommendation of this Agreement within five business days after a written request by Purchaser to do so, or (D) recommended to Seller's stockholders that they approve, accept or tender their shares in response to any Alternative Proposal; (ii) if Seller or any of the other Restricted Persons shall take any other action that results in a material breach of Section 6.5; (iii) if the Seller shall have breached entered into (or failed the Seller Board shall have authorized the Seller to complyenter into) a letter of intent, agreement in principle, acquisition agreement or other similar undertaking with respect to any Alternative Proposal; or (iv) if Seller or the Netherlands Subsidiary breaches or fails in any material respect to perform or comply with any of its covenants or agreements contained herein, or breaches any of its representations and warranties in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the each case of clauses (A) and (B) abovethat is not curable, such breach, failure or inaccuracy would give rise to that the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to 8.2(a) cannot be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing)satisfied. (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This The Purchaser may terminate its obligations under Article I of this Agreement may be terminated by Purchaser at any time prior written notice to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any Company following the occurrence of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the following: (a) the Company shall default in any material respect in the performance of any covenant or agreement under this Agreement, which default shall continue for more than ten (10) Business Days following written notice thereof from the Purchaser; provided that, so long as the representations or and warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition Company set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable 2.01 of being cured prior to this Agreement shall have been true and correct on the Closing) within thirty (30) days (or by Agreement Date and no Material Adverse Change shall have occurred since the Outside Agreement Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may shall not have the right to terminate its obligations under Article I of this Agreement pursuant to this Section 9.01(b)(iiuntil the ninth (9th) only if at sale of Tranche Shares; (b) repayment of amounts due under the time Credit Agreement shall have been accelerated following an Event of termination Default; (xc) Purchaser is not in material breach the representations and warranties of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions the Company set forth in Section 7.02 required 2.01 of this Agreement shall not be true and correct in all material respects as of the Agreement Date or on any Tranche Closing Date, except for the representations and warranties made as of a particular date which representations and warranties need be true and correct in all material respects only as of such date, which failure to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing true and correct shall not have occurred on or before been cured within ten (10) Business Days following written notice thereof from the Outside DatePurchaser; providedprovided that, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at so long as the time representations and warranties of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions the Company set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each 2.01 of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement shall have been true and correct on the Agreement Date and no Material Adverse Change shall have occurred since the Agreement Date, Purchaser shall not have the right to terminate its obligations under Article I of this Agreement until the ninth (9th) sale of Tranche Shares; (d) the Company shall merge or consolidate with any Person, or shall sell or substantially all of its assets, or shall enter into any definitive agreement contemplating the same; (e) the Closing of the purchase and sale of the final Tranche Shares shall not have been completed by May 24, 2006; (f) except pursuant to Stock Equivalents (as hereinafter defined) outstanding on the date of this Section 9.01(b)(ii) during Agreement and disclosed in the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing SEC Documents or pursuant to Section 10.15. the Company's 2002 Equity Incentive Plan or pursuant to the Approved Transaction or in connection with the Approved Financing, the Company issues, or agrees to issue: (i) shares of Common Stock at a purchase price less than the highest of the Tranche Purchase Prices; (ii) shares of capital stock convertible into Common Stock; or (iii) This Agreement may be terminated by Purchaser at Stock Equivalents with an exercise or conversion price less than the highest of the Tranche Purchase Prices (For purposes hereof "Stock Equivalents" shall mean options, warrants, calls, rights, commitments, convertible securities and other securities pursuant to which the holder, directly or indirectly, has the right to acquire (with or without additional consideration) capital stock or equity of the Company, and "Approved Transaction" and "Approved Financing" shall have the meanings set out in Schedule 5.01(f); (g) the Company declares or pays any time prior dividend or distribution to its shareholders, or purchases or redeems any Common Stock other than pursuant to the ClosingApproved Transaction; or (h) in the event that the Company completes any financing or other capital raising transaction, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, the gross proceeds of which equal or exceed the sum of the Aggregate Tranche Purchase Prices for the Tranches that as of the date such financing or other capital raising transaction is completed have not been purchased by the Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impedimenthereunder.

Termination by Purchaser. (i) This Purchaser may terminate this Agreement may be terminated by Purchaser at any time prior to the Closing, if Closing Date if: (Aa) there has been a material breach by Seller shall have breached or failed to comply, in any material respect, with and Parent of any of Seller’s covenants its representations or agreements warranties contained in this Agreement or (B) there shall have been a which breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured within three (if capable of being cured prior to the Closing3) within thirty Business Days after written notice thereof; (30b) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in there has been a material breach of any of its representations, warranties, the covenants or agreements contained set forth in this Agreement on the part of Seller and Parent, which breach is not curable or, if curable, is not cured within ten (y10) days after written notice of such breach is given by Purchaser has satisfied those to Seller and Parent; (c) the conditions to the obligations of Purchaser set forth in Section 7.02 required to 7.2 shall not have been waived or satisfied on or before the Termination Date or such earlier date as may be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing).specified therefor; (iid) This Agreement may the Closing Date shall not have occurred on or prior to the Termination Date; provided, however, that the right to terminate shall not be terminated by Purchaser available under this Section 9.3(d) if the Closing shall not have occurred on or before by such date as a result of the Outside Date; provided, however, that (A) failure of Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of fulfill any of its representationsobligations under this Agreement; or (e) the Bankruptcy Court denies that portion of the Sale Procedures Motion with respect to the Expense Reimbursement and Break-Up Fee in whole or in part, warranties, covenants the Sale Procedure Order is modified in any material respect without the consent of Purchaser or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each Bankruptcy Court approves a sale of which is capable some or all of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement Purchased Assets pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15a Competing Offer. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated and the purchase and sale of the Transferred Assets and the other transactions contemplated by Purchaser this Agreement may be abandoned at any time prior to the Closing, if Closing by Purchaser by written notice to Sellers if: (A) Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (Ba) there shall have has been a breach of or inaccuracy in any material respect when representation or warranty made with one by the Sellers or more of the representations or warranties of Seller contained RMST in this Agreement andor any of the Sellers or RMST has failed to perform any of its covenants or agreements in this Agreement, in the case of clauses (A) and (B) above, such which breach, inaccuracy or failure or inaccuracy would give to perform (i) gives rise to the a failure of a condition the conditions set forth in Section 7.01 6.3(a) or 6.3(b) to be satisfied, which breach, failure or inaccuracy satisfied and (ii) (A) is not capable of being cured by the Outside Date or (B) if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooneris not cured by the earlier of the Outside Date and fifteen (15) after receiving calendar days following Purchaser’s delivery of written notice thereof from Purchaserto the Sellers of such breach; provided, provided that Purchaser may shall not have the right to terminate this Agreement pursuant to this Section 9.01(b)(ii7.4(a) only if at the time of termination (x) Purchaser is not then in material breach of this Agreement so as to cause any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those the conditions set forth in Section 7.02 required Article VI not to be satisfied by it capable of being satisfied; (b) (i) the Approval Motion has not been filed with the Bankruptcy Court prior to 9:00 p.m. (Eastern Time) on the Business Day following the Execution Date, (ii) the Bankruptcy Court has not approved and entered the Bidding Procedures Order prior to 9:00 p.m. (Eastern Time) on July 20, 2018, (iii) the Bankruptcy Court has not approved and entered the Approval Order prior to 9:00 p.m. (Eastern Time) on August 15, 2018, (iv) the Admiralty Court has not approved and entered the Admiralty Court Order prior to 9:00 p.m. (Eastern Time) on September 7, 2018, (v) following entry of the Approval Order, the Admiralty Court Order or the Bidding Procedures Order, any of the Approval Order, Admiralty Court Order or the Bidding Procedures Order is stayed, reversed, modified, vacated or amended in any material respect without the prior written consent of Purchaser (such consent not to be unreasonably withheld), and such stay, reversal, modification, vacation or amendment is not eliminated within fourteen (14) days of any such stay, reversal, modification, vacation or amendment; or (vi) a Person shall have appealed the Admiralty Court Order within sixty (60) days of the Admiralty Court Order Entry Date; (i) the Sellers accept a Qualified Bid as the Prevailing Bid (each as defined in the Bidding Procedures) from a Person other than Purchaser or (ii) the Sellers enter into a definitive agreement relating to a Competing Transaction (as defined in the Bidding Procedures) with another Person (other than those conditions that by their terms are to be satisfied by actions taken at Purchaser) and the Closing, each of which is capable of being satisfied at the Closing).Bankruptcy Court enters an order approving such definitive agreement; (iid) This one or more of the Bankruptcy Cases are dismissed by the Bankruptcy Court or converted into a case under Chapter 7 of the Bankruptcy Code; (e) a Chapter 11 trustee or examiner under the Bankruptcy Code with expanded powers is appointed for one or more of the Debtor Sellers or RMST; (f) the Bankruptcy Court approves a disclosure statement with respect to a Chapter 11 plan filed by any Person other than the Debtor Sellers or RMST, provided, however, that if the Bankruptcy Court sua sponte issues an order conditionally approving any such disclosure statement (a “Conditional Approval Order”), Purchaser will not have the right to terminate this Agreement may be under this section 7.4(f) as long as (a) the Debtors move, within one Business Day of the entry of a Conditional Approval Order, to vacate such Conditional Approval Order, and (b) the Bankruptcy Court vacates such Conditional Approval Order within 14 days of its entry; (g) any of the Sellers or RMST file a Chapter 11 plan without the consent of the Purchaser; (h) the DIP Agreement matures or is in default unless otherwise extended or waived by the DIP Lender; (i) the Luxor Lease is terminated by Purchaser if or expires or is modified or amended without Purchaser’s consent; (j) the Closing shall not have occurred on or before prior to the date that is seventy (70) calendar days after the Admiralty Court Order Entry Date (the “Outside Date”); provided, however, provided that (A) Purchaser may the right to terminate this Agreement pursuant to this Section 9.01(b)(ii7.4(j) only shall not be available to Purchaser if at the time of termination (x) Purchaser is not in material Purchaser’s breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition agreement under this Agreement materially contributed shall have caused the failure of the Closing to have occurred by the cause of such Closing Legal ImpedimentOutside Date; or (k) Sellers fail to comply with Section 5.18 in any respect.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser and the Sub Merger and the Parent Merger may be abandoned at any time prior to consummation thereof, before or after the Closing, approval by stockholders of Parent or Sub if (Aa) Seller the Parent Board shall have withdrawn or modified in a manner adverse to Purchaser its approval or recommendation of this Agreement, or the Parent Board, upon request by Purchaser, shall fail to reaffirm its approval or recommendation, or shall have resolved to do any of the foregoing, or at the Sub Stockholders' Meeting all shares of Sub Common Stock owned directly or indirectly by Parent shall not have been voted in favor of the Sub Merger and in favor of the amendment to Sub's Articles of Incorporation described in Section 5.1(z) hereof; or (b) Parent shall have failed to perform in any material way any of its covenants under this Agreement in a manner so as not to satisfy the condition to closing in Section 7.2(a), which failure to perform is incapable of being cured or has not been cured within twenty (20) days after the giving of notice thereof to Parent; or (c) Parent shall have breached or failed to comply, in any material respect, with any of Seller’s covenants its representations or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy warranties in any material respect when made with one in a manner so as not to satisfy the condition to closing in Section 7.2(b), which breach is incapable of being cured or more has not been cured within twenty (20) days after the giving of notice thereof to Parent; or (d) the Board of Directors of Sub, or the Independent Committee thereof, shall have withdrawn or modified in a manner adverse to Purchaser its approval or recommendation of this Agreement, or the Board of Directors of Sub, or the Independent Committee thereof, upon request by Purchaser, shall fail to reaffirm its approval or recommendation, or shall have resolved to do any of the foregoing; or (e) Sub shall have failed to perform in any material way any of its covenants under this Agreement in a manner so as not to satisfy the condition to closing in Section 7.2(a), which failure to perform is incapable of being cured or has not been cured within twenty (20) days after the giving of notice thereof to Sub; or (f) Sub shall have breached any of its representations or warranties of Seller contained in this Agreement and, any material respect in a manner so as not to satisfy the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise condition to the failure of a condition set forth closing in Section 7.01 to be satisfied7.2(b), which breach, failure or inaccuracy breach is not cured (if capable incapable of being cured prior to the Closing) or has not been cured within thirty twenty (3020) days (or by after the Outside Date, if sooner) after receiving giving of notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing)Sub. (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Purchaser may terminate this Agreement may be terminated by Purchaser at any time prior to the ClosingClosing by written notice to the Shareholders’ Representative: (a) upon a material breach of any representation, warranty, covenant or agreement on the part of the Company, FGH, the Sellers or the Shareholders’ Representative set forth in this Agreement or the Ancillary Agreements, or if any representation or warranty of the Company, the Sellers or the Shareholders’ Representative shall have become untrue, incomplete or incorrect, in either case which has rendered the satisfaction of the conditions set forth in Section 7.01(a), Section 7.01(b) or Section 7.01(c) incapable of fulfillment, and such violation or breach has neither been waived by Purchaser nor (if capable of being cured) cured by the Company, FGH, the Sellers or the Shareholders’ Representative within 30 days of the Shareholders’ Representative’s receipt of written notice of such violation or breach from Purchaser; provided, however, that the right to terminate this Agreement under this Section 8.04(a) shall not be available to Purchaser if Purchaser is then in material breach of any representation, warranty, covenant or agreement set forth in this Agreement or the Ancillary Agreements; or (b) if (Ai) Seller the Closing shall not have breached occurred by the Termination Date and (ii) the failure of the Closing to occur on or failed before such date is not caused by a failure of Purchaser to comply, perform and comply in any all material respect, respects with any of Seller’s its covenants or and agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, Ancillary Agreements that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 are required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken performed or complied with at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingClosing Date by action of Purchaser, if: (a) the Company shall have materially breached any provision of this Agreement and as a result thereof the conditions to Purchaser's obligations set forth in Section 5.3(a) shall not be capable of being fulfilled; provided that any breach(s) of any representation or warranty that individually or in the aggregate shall give rise to a Company Material Adverse Effect and providing the basis for such termination is not curable or, if curable, is not cured within ten calendar days after written notice of such breach is given by Purchaser to the Company; or (b) there has been a material breach or failure to perform of any of the covenants set forth in this Agreement on the part of the Company, which breach is not curable or, if curable, is not cured within ten calendar days after written notice of such breach is given by Purchaser to the Company; or (c) (i) the Company Board or any committee thereof shall have (A) Seller shall have breached or following receipt of an Alternative Proposal, failed to complyreconfirm within ten Business Days of a written request by Purchaser to do so, or at any time withdrawn or modified in any material respecta manner adverse to Purchaser, with any its approval or recommendation of Seller’s covenants or agreements contained in this Agreement and the transactions contemplated hereby or (B) approved or recommended, or proposed publicly to approve or recommend, any Alternative Proposal or shall have resolved to do any of the foregoing, or (ii) the Company shall have entered into a Company Agreement or the Company Board shall have authorized the Company to do so; or (d) (i) any person, entity or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired beneficial ownership of more than 10% of the voting securities of the Company through the acquisition of voting securities, the formation of a group or otherwise, or shall have been granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of more than 10% of the voting securities of the Company and (ii) the Company Board shall not have exercised its rights under Section 4 of Article V of the Company's articles of incorporation to limit such ownership within five Business Days after notice of such acquisition; or (e) the indebtedness under the Senior Unsecured Notes shall have matured and become due prior to the Closing Date or there shall have been a breach default or event of or inaccuracy in any material respect when made with one or default as to more than $1.0 million of the representations or warranties of Seller contained in this Agreement andCompany's indebtedness, in including without limitation the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to indebtedness under the failure of a condition set forth in Section 7.01 to be satisfiedFleet Loan Documents, which breach, failure or inaccuracy is not cured (if capable then subject to a valid and binding agreement of being cured prior to the Closing) within thirty (30) days (lenders thereof waiving such default or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time event of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing)default. (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by the Purchaser at any time prior to the Closing, Closing (notwithstanding any approval of this Agreement by the stockholders of the Company): (a) if (Ai) Seller a Company Adverse Recommendation Change shall have occurred, (ii) the Company shall have entered into, or publicly announced its intention to enter into, a Company Acquisition Agreement, (iii) the Company shall have breached or failed to comply, perform in any material respect, with respect any of Seller’s the covenants and agreements set forth in Section 5.11, (iv) the Board fails to reaffirm (publicly, if so requested by the Purchaser) the Company Board Recommendation within five (5) Business Days after the date any Takeover Proposal (or agreements contained material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer relating to Common Stock shall have been commenced by a Person unaffiliated with the Purchaser and the Company shall not have sent to its stockholders pursuant to Rule 14e-2 under the Securities Act, within five (5) Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, or (vi) the Company or the Board (or any committee thereof) shall publicly announce its intentions to do any of actions specified in this Agreement or Section 6.3(a); or (Bb) if there shall have been a material breach of any representation, warranty, covenant or inaccuracy in any material respect when made with one or more agreement on the part of the representations or warranties of Seller contained Company set forth in this Agreement such that the conditions to the Closing would not be satisfied and, in the case of clauses (A) and (B) aboveeither such case, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy breach is not cured (if capable incapable of being cured by the End Date; provided that the Purchaser shall have given the Company at least 30 days written notice prior to such termination stating the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may ’s intention to terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing6.3(b). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. Purchaser may terminate this Agreement upon the occurrence of any of the following: (i) This Agreement may if any of the conditions to the obligations of Purchaser to close that are set forth in Sections 8.1 and 8.3 (other than those that are to be terminated satisfied at Closing) shall have become incapable of fulfillment other than as a result of a breach by Purchaser at of any time prior representation, warranty, covenant or agreement contained in this Agreement, and such condition is not waived by Purchaser; (ii) if there shall be a material breach by Sellers of any representation or warranty, or if Sellers shall fail to perform in any material respect any covenant or agreement contained in this Agreement which breach or nonperformance cannot be cured or has not been cured within ten (10) Business Days after the Closing, giving of written notice by Purchaser to Sellers of such breach or nonperformance; (iii) if Purchaser elects to terminate in accordance with Section 1.5 hereof; (Aiv) Seller shall have breached if either or failed to comply, both of the Sellers enter into a definitive agreement with a third party for an Alternative Transaction; (v) if the Bankruptcy Court enters any Order approving any Alternative Transaction or confirming any Chapter 11 Plan involving any Alternative Transaction; (vi) so long as Purchaser is not then in breach of its obligations under this Agreement in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or if the Sale Order is not entered within forty-five (B45) there shall have been a breach of or inaccuracy in any material respect when made with one or more days after the date hereof; (vii) conversion of the representations or warranties Bankruptcy Case to one under Chapter 7 of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing).Bankruptcy Code; (iiviii) This Agreement may be terminated by Purchaser [intentionally omitted]; or (ix) upon written notice to Sellers if the Closing shall not have occurred by the close of business on or before December 31, 2016 (the “Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15”). (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser Purchaser, at its option, at any time prior to the Closing, if Closing (Aexcept as provided in clause (v) Seller shall below) if: (i) Sellers have breached or failed to comply, comply in any material respect, respect with any of Seller’s their respective covenants or agreements contained in this Agreement herein or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of either Seller contained herein shall be false in any material respect; (ii) any conditions to the obligations of Purchaser contained herein shall not have been satisfied or occurred on or before the Closing Date (or such earlier date as may be specifically set forth in this Agreement andAgreement); (iii) there shall be any actual or threatened action or proceeding by or before any court or other Governmental Authority which shall seek to restrain, prohibit or invalidate the Acquisition and which, in the case judgment of clauses Purchaser, made in good faith, after consulting with counsel, makes it inadvisable to proceed with the Acquisition; (Aiv) and (B) abovethe Acquisition is disapproved by any regulatory authority whose approval is required to consummate the Acquisition or if, in the reasonable judgment of Purchaser, after consulting with counsel, there is a substantial likelihood that any such breach, failure approval will not be obtained or inaccuracy would give rise to the failure of will be obtained only upon a condition set forth or conditions which are unsatisfactory to Purchaser and that therefore it is inadvisable to proceed with the Acquisition; (v) Purchaser elects in Section 7.01 its sole, absolute and unqualified discretion to be satisfied, which breach, failure terminate this Agreement by providing a written notice of such termination to Sellers on or inaccuracy is not cured before the last to occur of (if capable i) forty-five days from the date of being cured prior to the Closingthis Agreement or (ii) within thirty (30) days after delivery of Sellers' Schedules in accordance with Section 17 hereof; (or vi) the closing of the transaction contemplated by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; providedDecember 31, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.152004. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. Purchaser may terminate this Agreement prior to the Closing upon the occurrence of any of the following: (i) This Agreement may be terminated if Seller fails or is unable to assign to Purchaser those Assigned Contracts, Purchased Personal Property Leases, Purchased Real Property Leases and Purchased Intellectual Property Licenses listed on Section 4.4(a)(i) of the Purchaser Disclosure Schedule; (ii) if any of the conditions to the obligations of Purchaser to close that are set forth in Sections 10.1 and 10.3 hereto shall have become incapable of fulfillment other than as a result of a breach by Purchaser at or its Affiliates of any time prior to the Closing, if (A) Seller shall have breached covenant or failed to comply, in any material respect, with any of Seller’s covenants or agreements agreement contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement andAgreement, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or waived by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, provided that Purchaser may the right to terminate this Agreement pursuant to this Section 9.01(b)(ii4.4(a)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before apply with respect to the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time approvals of termination (x) Purchaser is not Governmental Bodies addressed in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the ClosingSections 4.4(c)(iii) and (Bc)(iv) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller hereto, which are addressed and provided for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15.in such Sections; (iii) This Agreement may if there shall be terminated a breach by Seller of any representation or warranty, or any covenant or agreement contained in this Agreement, which breach would result in a Material Adverse Effect and cannot be cured or has not been cured within twenty (20) Business Days after the giving of written notice by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be Pax Christi of such breach; (iv) so long as Purchaser is not then in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition breach of its obligations under this Agreement materially contributed in any material respect, if the Sale Order is not entered within sixty (60) days from the Petition Date; or (v) if the Sale Order has been vacated, reversed or modified in a material manner with respect to the cause of such Closing Legal ImpedimentPurchaser’s rights or protections thereunder without Purchaser’s prior written consent.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser terminated, and the transactions contemplated hereby may be abandoned at any time prior to the ClosingClosing by Purchaser if: 7.4.1 at any time prior to the Stockholder Approval having been obtained, if (Aa) the Board shall have made a Change in Recommendation, (b) Seller shall have failed to include the Board Recommendation in the Information Statement or (c) Seller shall have materially breached or shall have failed to comply, perform in any material respect, with any of Seller’s covenants or agreements contained respect its obligations set forth in this Agreement or (B) Section 5.6; 7.4.2 there shall have has been a breach of any representation, warranty, covenant or inaccuracy in any material respect when agreement made with one or more of the representations or warranties of by Seller contained in this Agreement andAgreement, in or any such representation and warranty shall have become untrue after the case of clauses (A) and (B) aboveExecution Date, such breach, failure or inaccuracy would give rise to the failure of a that any condition set forth in Section 7.01 6.2.1 or Section 6.2.2 would not be satisfied and such breach or failure to be satisfied, which breach, failure or inaccuracy true is not cured (curable or, if capable of being curable, is not cured prior to the Closingearlier of (a) within thirty 30 days following notice to Seller from Purchaser of such breach or failure and (30b) days the date that is three (or by 3) Business Days prior to the Outside End Date, if sooner) after receiving notice thereof from Purchaser; provided, provided that Purchaser may shall not have the right to terminate this Agreement pursuant to this Section 9.01(b)(ii) only 7.4.1 if at the time of termination (x) Purchaser is not then in material breach of any of its representations, warranties, covenants or agreements contained in under this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside DateAgreement; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material there has been a breach of any of its representations, warranties, covenants or agreements the representations and warranties contained in this Agreement Section 3.1.19 (but excluding subsection (a) thereof), such breach shall not be curable and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at shall have the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) right to terminate this Agreement if Purchaser’s failure Agreement; or 7.4.3 the Texas State Legislature fails to fulfill any obligation appropriate or condition under this Agreement materially contributed allot the necessary funds, or the UT Board of Regents fails to allocate the necessary funds to Purchaser in an amount equal to the cause of such Closing Legal ImpedimentPurchase Price.

Termination by Purchaser. (ia) This If Purchaser terminates this Agreement may be terminated pursuant to Section 15.1(a), this Agreement shall become null and void, Title Company shall return the Deposit to Purchaser and no party shall have any further liability or obligation to any other party under this Agreement, except as otherwise provided in this Agreement; provided that in the event such termination by Purchaser at is the result of a default by Seller, Seller shall Seller shall also reimburse Purchaser for Purchaser’s actual out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to the negotiation of this Agreement and the transactions contemplated hereby and Purchaser’s due diligence, up to a maximum of $75,000.00 (in the aggregate). The provisions of this Section shall survive any time termination of this Agreement. (b) If Seller defaults prior to the Closing, if (A) Seller shall have breached or failed to comply, Closing in any material respect, with performing any of Seller’s the covenants or agreements contained to be performed by Seller under this Agreement, Purchaser shall have the right, in lieu of terminating this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in pursuant to Section 15.1, to elect to permit this Agreement andto remain in effect and to xxx for specific performance (but not to seek or collect any damages caused by Seller’s default, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is except as otherwise expressly provided herein). If Purchaser does not cured (if capable of being cured prior to the Closing) file suit for specific performance within thirty (30) days after the earlier of the scheduled Closing Date or Purchaser’s receipt of Seller’s written demand (or by the Outside Date, if soonerfollowing Purchaser’s allegation that Seller has defaulted under this Agreement) after receiving notice thereof from Purchaser; provided, that Purchaser may elect to either terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) 15.1 or to file suit for specific performance, then Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required shall be deemed to be satisfied by it (other than those conditions that by their terms are have elected to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) 15.2(a). If Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required elects to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursue specific performance pursuant to this Section 9.01(b)(ii15.2(b) during the pendency but specific performance as contemplated in this Section 15.2(b) is unavailable to Purchaser as a result of any Legal Proceeding brought action taken by Seller, Seller shall reimburse Purchaser for specific performance of Purchaser’s obligation direct and actual damages, including without limitation all of its out-of-pocket costs and expenses (including reasonable attorneys’ fees, costs and disbursements) related to consummate the Closing pursuant to Section 10.15negotiation of this Agreement and the transactions contemplated hereby and Purchaser’s due diligence, provided that in no event shall such reimbursement exceed $75,000.00 (in the aggregate). (iiic) This Notwithstanding anything set forth in this Agreement may be terminated by Purchaser at any time prior to the Closingcontrary, Purchaser agrees that if a finalthe Closing is consummated, non-appealable Closing Legal Impediment Seller shall be in effect; providedhave no liability to Purchaser for any breach of Seller’s covenants, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation agreements, representations or condition warranties under this Agreement materially contributed and/or under any other agreement, document, certificate or instrument delivered by Seller to Purchaser unless the valid claims for all such breaches collectively aggregate more than $50,000, in which event the full amount of such valid claims shall be actionable up to the cause Cap Amount; and Purchaser agrees that any recovery against Seller for any breach of such Seller’s covenants, agreements, representations and warranties under this Agreement and/or under any other agreement, document, certificate or instrument delivered by Seller to Purchaser, or under any law applicable to the Property or this transaction, shall be limited to Purchaser’s actual damages not in excess of $1,000,000 (the “Cap Amount”) in the aggregate and that in no event shall Purchaser be entitled to seek or obtain, and Purchaser hereby waives any right to pursue a claim thereunder for, any other damages of any kind, including, without limitation, consequential, indirect or punitive damages. Notwithstanding anything contained herein or in the Closing Legal ImpedimentDocuments, the Cap Amount shall in no event apply to claims made or Seller’s liabilities under Article 14 or Sections 17.8 or 17.9 of this Agreement or attorneys’ fees reimbursement provision contained in the Closing Documents. The provisions of this Section shall survive the Closing or any termination or purported termination of this Agreement.

Termination by Purchaser. (i) This Agreement may be terminated and the Offer, if commenced, shall be terminated forthwith by action of the Board of Managers of Purchaser at any time prior to the ClosingAcceptance Date, if if: (Aa) Seller (i) there shall have occurred a Company Adverse Recommendation Change or (ii) Company shall have otherwise breached or failed to comply, Section 4.2 in any material respect; or (b) a tender offer or exchange offer that, if successful, would result in any Person or “group” becoming a “beneficial owner” (such terms having the meaning in this Agreement as is ascribed under Regulation 13D under the Exchange Act) of 66.67% or more of the outstanding Shares is commenced (other than by Purchaser or an Affiliate of Purchaser) and the Board of Directors of Company recommends that the shareholders of Company tender their shares in such tender or exchange offer; or (c) (i) there shall have occurred a Company Material Adverse Effect or (ii) there has been a breach by Company of any representation, warranty, covenant or agreement contained in this Agreement that would, individually or aggregated with all such breaches, reasonably be expected to cause a failure to meet any of Seller’s the conditions of Annex I and is not curable or, if curable, is not cured within twenty (20) business days after written notice of such breach is given by Purchaser to Company; provided that Purchaser shall not have the right to terminate this Agreement pursuant to this Section 5.4(c)(ii) if Purchaser is then in material breach of any of its respective covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case if such breach is capable of clauses (A) and (B) abovebeing cured, such breach, failure breach has not been cured; or (d) due to circumstances or inaccuracy occurrences that if occurring after the Launch Date would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured make it impossible (if capable and therefore incapable of being cured prior to the ClosingTermination Date) within thirty (30) days (to satisfy one or by more of the Outside Dateconditions set forth in Annex I hereto, if sooner) after receiving notice thereof from PurchaserPurchaser shall have failed to commence the Offer on or prior to the date provided therefore in Section 1.1; provided, provided that Purchaser may shall not have the right to terminate this Agreement pursuant to this Section 9.01(b)(ii5.4(d) only if at the time of termination (x) Purchaser is not then in material breach of any of its representations, warranties, respective covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closingand, each of which if such breach is capable of being satisfied at the Closing)cured, such breach has not been cured. (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior Prior to the Closing, if (A) Seller Purchaser shall have breached or failed the right to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii(and abandon the transactions contemplated hereby and by the Ancillary Agreements) only if at the time of termination (xa) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Exhibit 2.1 - Asset Sale Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if Page 33 the Closing shall not have occurred on or before July 1, 2013 (the “Outside Date; provided”), howeverunless the failure of the Closing to occur by such date shall have been proximately caused by the failure of Purchaser to perform or comply with any of the agreements or covenants to be performed, that or complied with, by it on or prior to the Closing Date pursuant hereto, (Ab) Purchaser may terminate the condition set forth in Section 6.01(f) or Section 6.01(m) shall not have been satisfied on or before the 30th day following the date of this Agreement pursuant to this Section 9.01(b)(iiAgreement, (c) only if at the time of termination (x) Purchaser is not in there has been a material violation or breach by Seller of any of its representationscovenant contained in this Agreement, warranties, covenants or agreements any representation or warranty contained in this Agreement shall fail to be true and (y) Purchaser has satisfied those correct that in either case would cause any of the conditions set forth in Section 7.02 required 6.01(a) or (b) not to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closingsatisfied, each of which is and such violation, breach or failure, if capable of being satisfied at cure, is not cured within 10 Business Days of the Closingreceipt of written notice thereof by Seller from Purchaser, (d) there has been a Material Adverse Effect or (e) Seller delivers to Purchaser an update of the Seller Disclosure Schedules in accordance with Section 7.13(d) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during Purchaser, in its reasonable judgment, determines that such updates are individually or in the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior aggregate materially adverse to the ClosingBusiness, if a finalthe Purchased Assets, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal ImpedimentAssumed Liabilities.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingClosing by Purchaser, if upon written notice to Sellers, if: (Aa) Seller shall have breached to the extent that the shareholders of either Solitario or failed Exx Gold are required to comply, in any material respect, with any of Seller’s covenants or agreements contained in approve this Agreement or the transactions provided for herein, the shareholders of either Solitario or Exx Gold, as applicable, do not provide such approval at any meeting of such shareholders held for such purpose; (Bb) the board of directors, or any applicable special committee, of either Solitario or Exx Gold does not approve or, if applicable, recommend this Agreement or the transactions provided for herein, or withdraws, modifies, changes or qualifies any such approval or recommendation in any manner adverse to Purchaser; (c) the board of directors of either Solitario or Exx Gold approves or recommends a Superior Proposal; (d) there shall have been occurs a breach of or inaccuracy in Material Adverse Effect such that any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to 3.4(a) through Section 3.4(e) would not be satisfied; or (e) there has been a breach of any representation, warranty, covenant or agreement made by either Seller in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any condition set forth in Section 3.4(a) through Section 3.4(e) would not be satisfied, which breachand such breach or condition is not curable or, failure or inaccuracy if curable, is not cured (if capable to the reasonable satisfaction of being cured Purchaser prior to the Closingearlier of (i) within thirty 15 calendar days after Sellers became aware of such breach or circumstance, (30ii) days (or by one Business Day prior to the Outside Date and (iii) in the case of a breach of a representation and warranty as contemplated by Section 1.10, the earlier of (A) 15 calendar days after Sellers deliver to the Purchaser a supplement, amendment or modification to a Schedule and (B) three calendar days prior to the Closing Date; in each case, if sooner) after receiving notice thereof from Purchaser; provided, provided that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not then in material breach of this Agreement so as to cause any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those the conditions set forth in Section 7.02 required 3.5(a) or Section 3.5(b) not to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing)satisfied. (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement andshall prove to have been inaccurate in any material respect, which, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Dateeach case, if sooner) after receiving notice thereof from Purchaser; providednot cured, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not would result in material breach a failure of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those the conditions set forth in Section 7.02 required 7.01(a) or Section 7.01(b) to be satisfied satisfied, and such inaccuracy or breach shall not have been cured within [***] Business Days after receipt by it the Seller of written notice of such inaccuracy or breach (other than those conditions provided that no such cure period shall be available or applicable to any such breach that by their terms are to its nature cannot be satisfied cured by actions taken at the Closing, each of which is capable of being satisfied at the ClosingOutside Date). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, provided that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being Closing and could have been satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the or would have been waived assuming a Closing pursuant to Section 10.15would occur). (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser and the Sub Merger and the Parent Merger may be abandoned at any time prior to consummation thereof, before or after the Closing, approval by stockholders of Parent or Sub if (Aa) Seller the Parent Board shall have withdrawn or modified in a manner adverse to Purchaser its approval or recommendation of this Agreement, or the Parent Board, upon request by Purchaser, shall fail to reaffirm its approval or recommendation, or shall have resolved to do any of the foregoing, or at the Sub Stockholders' Meeting all shares of Sub Common Stock owned directly or indirectly by Parent shall not have been voted in favor of the Sub Merger and in favor of the amendment to Sub's Articles of Incorporation described in Section 5.1(z) hereof; or (b) Parent shall have failed to perform in any material way any of its covenants under this Agreement in a manner so as not to satisfy the condition to closing in Section 7.2(a), which failure to perform is incapable of being cured or has not been cured within twenty (20) days after the giving of notice thereof to Parent; or (c) Parent shall have breached or failed to comply, in any material respect, with any of Seller’s covenants its representations or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy warranties in any material respect when made with one or more of in a manner so as not to satisfy the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise condition to the failure of a condition set forth closing in Section 7.01 to be satisfied7.2(b), which breach, failure or inaccuracy breach is not cured (if capable incapable of being cured prior to the Closing) or has not been cured within thirty twenty (3020) days (or by after the Outside Date, if sooner) after receiving giving of notice thereof from to Parent; or (d) the Board of Directors of Sub, or the Independent Committee thereof, shall have withdrawn or modified in a manner adverse to Purchaser its approval or recommendation of this Agreement, or the Board of Directors of Sub, or the Independent Committee thereof, upon request by Purchaser; provided, that Purchaser may terminate this Agreement pursuant shall fail to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of reaffirm its approval or recommendation, or shall have resolved to do any of its representations, warranties, covenants the foregoing; or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement shall prove to have been inaccurate in any material respect when made and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured and Purchaser shall have given Seller a reasonable opportunity to cure (if capable of being cured prior to the Closing) within thirty any such failure or inaccuracy to so comply before the Closing. (30ii) days (This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or by before the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, however, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (xA) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and Agreement, (yB) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). ) and (iiC) This Agreement may be terminated by Purchaser if the Closing Seller shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may failed to validly exercise its right to terminate this Agreement pursuant to this under Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.159.01(c)(iii). (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure Purchaser shall have failed to fulfill use reasonable best efforts to prevent the occurrence of any obligation such Closing Legal Impediment or condition under this Agreement materially contributed to the cause of remove or appeal as promptly as practicable any such Closing Legal Impediment. (iv) This Agreement may be terminated by Purchaser at any time prior to the Closing if (A) Seller has not delivered the Financial Statements (excluding the Q1 Financials), the Seller Financial Statement Certification and the Audit Opinion to Purchaser by March 31, 2015 or (B) the Financial Statements as delivered by Seller do not reflect [***]

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser and the Merger abandoned at any time prior to the ClosingEffective Time, if by Purchaser and Merger Sub, whether or not the Company Shareholder Approval has been obtained: (Aa) Seller shall have breached upon a breach by Company of any representation, warranty, covenant, or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained agreement set forth in this Agreement or (B) there any Ancillary Document, or if any such representation or warranty shall have been a breach of become untrue, incomplete, or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement andincorrect, in either or both cases that individually or in the case aggregate could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole (a "Terminating Company Breach"); provided, that if such Terminating Company Breach is curable by Company through the exercise of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) commercially reasonable efforts within thirty (30) days following notice of such Terminating Company Breach, for so long as Company continues to exercise such commercially reasonable efforts, and such Terminating Company Breach is cured within such thirty (or by the Outside Date, if sooner30) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) day period. Purchaser may not terminate this Agreement pursuant to under this Section 9.01(b)(ii9.4 within such thirty (30) during day period; and provided, further, that the pendency preceding proviso shall not in any event be deemed to extend the Deadline Date; (b) if an Alternative Transaction shall have been announced or otherwise publicly known and the board of directors of Company shall have (A) failed to recommend against acceptance of such by its shareholders (including by taking no position, or indicating its inability to take a position, with respect to the acceptance by its shareholders of an Alternative Transaction, (B) failed to reconfirm its approval and recommendation of this Agreement, the Merger and the transactions contemplated hereby within five (5) Business Days after Purchaser requests in writing that such recommendation be reconfirmed, (C) made a Change in the Company Recommendation, or (D) determined that such Alternative Transaction is a Superior Transaction and takes any of the actions allowed by Section 6.1(b), or the board of directors resolves to take any of the actions described above, and as a result of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15foregoing, the Company Shareholder Approval shall not have been obtained and the Merger and the transactions contemplated hereby shall not have been consummated. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. The Purchaser shall be entitled to terminate the Agreement, without liability, cost, or penalty: on written notice to the Supplier where the Supplier: (i) This makes any general assignment for the benefit of creditors or otherwise enters into any composition or arrangement with its creditors; (ii) has a receiver and/or manager appointed over its assets or makes an application to do so; (iii) becomes bankrupt or insolvent or commits an act of bankruptcy or takes or attempts to take advantage of any law or statute for the relief of bankrupt or insolvent debtors; (iv) has a resolution or a petition filed or an order made for its winding up; or (v) ceases to carry on business. Notwithstanding the foregoing, the Purchaser shall not be entitled to terminate this Agreement may be terminated by Purchaser at any time prior under this Section if the Supplier, or its creditors, or some other party makes suitable provisions for the performance of its obligations hereunder; on [Insert] [Days] written notice to the ClosingSupplier, if (A) Seller shall have breached or failed to comply, in following the occurrence of any material respect, with change in the Purchaser’s requirements which results from regulatory or funding changes or recommendations issued by any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy Governmental Authority; on written notice to the Supplier if the Supplier breaches in any material respect when made any of its obligations or covenants hereunder with one respect to confidential information or more of the representations or warranties of Seller contained in this Agreement and, privacy; in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure event of a condition set forth material breach of Section 2.1 or Section 7.1 (including no conflict of interest), or any service standard referred in Section 7.01 to be satisfiedthe Error: Reference source not found, which breach, failure or inaccuracy if such breach is not cured (if capable within 90 Days of being cured prior Purchaser giving written notice of such material breach to the Closing) within thirty (30) days (or by Supplier; and as per any provision of the Outside Date, if sooner) after receiving Agreement that provides for early termination. [The Services and Fees Schedule and/or the should describe any specific points in time at which the Purchaser will the right to exit the arrangement and terminate the Agreement.] In the event that the Purchaser gives notice thereof from Purchaser; provided, that Purchaser may terminate of termination under this Agreement pursuant to or this Section 9.01(b)(ii) only if Agreement expires, or this Agreement is otherwise terminated, the Supplier shall, at the time request of the Purchaser do any or any combination of the following: disclose to the Purchaser the current state of the Services completed to the effective date of termination (xincluding all Deliverables that have been produced) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken the Supplier as at the Closing, each effective date of which is capable of being satisfied at termination; prepare a written report on the Closing). (ii) This Agreement may be terminated by Purchaser if Services completed to the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time effective date of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions including all Deliverables that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closinghave been produced) and (B) deliver that report in a professional manner acceptable to the Purchaser may not terminate this Agreement pursuant within 10 Days from the effective date of termination; provide to this Section 9.01(b)(ii) the Purchaser all Deliverables produced during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior Term, and return to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed all information and materials provided to the cause Supplier by the Purchaser; and assist with the transition/handover of such Closing Legal Impedimentthe Services, whether to the Purchaser or to a third party, as applicable and upon the request of the Purchaser.

Termination by Purchaser. (ia) This Agreement may be terminated by Purchaser at any time prior upon twenty (20) business days written notice to the ClosingSeller in the event that Seller stops all work on the Facility for a period of twenty (20) consecutive business days and abandons the Facility, if (A) other than as result of a Force Majeure or any other reason not within the Seller's control or a breach by Purchaser hereunder; unless Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in recommenced work on the Facility continuously and diligently during the second twenty (20) business day notice period. (b) If Seller materially defaults under this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) after notice and (B) above, such breach, failure or inaccuracy would give rise an opportunity to the failure of a condition cure as set forth in Section 7.01 2.15, or persistently fails or neglects to be satisfied, which breach, failure or inaccuracy is not cured (if capable carry out the material terms of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant after notice and an opportunity to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions cure as set forth in Section 7.02 required 2.15, or materially fails to be satisfied perform the provisions of this Agreement in a manner that has a material adverse effect upon the construction or the progress of construction (as certified by it (other than those conditions that by their terms are the Architect), and Seller fails to be satisfied by actions taken correct the same within the cure period specified in Section 2.15, Purchaser may at the ClosingPurchaser's option, each of which is capable of being satisfied at the Closing)terminate this Agreement. (iic) This Agreement may be terminated by Purchaser if In the Closing shall not have occurred on event of any termination under clause (a) or before (b) above, the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant without prejudice to this Section 9.01(b)(ii) only if at any other remedy take possession of the time Premises and of all materials, equipment, tools and construction equipment and machinery thereon owned by the Seller and finish the Work by whatever method the Purchaser may deem expedient. If the unpaid balance of the contract sum exceeds the expense of finishing the work and curing any defaults of Seller, the excess shall be paid to the Seller for work completed to the date of termination (x) Purchaser is not in material breach including a reasonable profit therefor consistent with the terms and intent of any of its representationsthis Agreement), warrantiesbut if the expense exceeds the unpaid balance, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at Seller shall pay the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior difference to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingOffer Completion Date by Purchaser, if (Aa) Seller shall have breached there has been a breach by the Company of any representation or failed to comply, in any material respect, with any of Seller’s covenants or agreements warranty contained in this Agreement which is not curable or, if curable, is not cured within fifteen (15) calendar days after written notice of such breach is given by Purchaser to the Company, but in either event, only if such breach or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement andbreaches, in the case of clauses aggregate, could be reasonably expected to have a Material Adverse Effect, (Ab) and (B) above, such breach, failure or inaccuracy would give rise to the failure of there has been a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, the covenants or agreements contained set forth in this Agreement and on the part of the Company, which breach is not curable or, if curable, is not cured within fifteen (y15) calendar days after written notice of such breach is given by Purchaser has satisfied those conditions set forth to the Company, (c) the Company Board or any committee thereof shall have (i) failed to recommend to the Shareholders that they accept the Offer or give the Company Shareholder Approval in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closingaccordance with this Agreement, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by withdrawn or modified or proposed publicly to withdraw or modify in a manner adverse to Purchaser if its approval or recommendation of this Agreement, the Closing shall not have occurred on Offer or before the Outside Date; providedMerger or failed to reconfirm publicly and unconditionally its approval or recommendation within three (3) Business Days after a written request to do so, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach which public reconfirmation must also include an unconditional rejection of any of its representationsthen pending Company Takeover Proposal, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This approved or recommended, or proposed publicly to approve or recommend, a Company Takeover Proposal to the Shareholders, (iv) caused the Company to take any action referred to in Section 5.5 that would have constituted a breach thereof but for the exceptions thereunder, including without limitation authorizing the Company to enter into a Company Acquisition Agreement, (v) approved the breach of the Company’s obligation under Section 5.5, or (vi) resolved to take any of the foregoing actions, (d) the Company enters into any Company Acquisition Agreement, (e) there has been a material breach by any Shareholder holding at least one percent (1%) of all Shares that is a party to the Shareholders Agreement may be terminated of any representation or warranty or covenant contained in the Shareholders Agreement which is not curable or, if curable, is not cured within five (5) calendar days after written notice of such breach is given by Purchaser at any time prior to the ClosingCompany and such Shareholder , if a finalor (f) the Fairness Opinion shall have been withdrawn, non-appealable Closing Legal Impediment shall be limited or otherwise modified in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impedimentrespect .

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingThe Purchasers may, if (A) Seller shall have breached or failed to comply, when neither is in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy default in any material respect when made with one or more in the performance of the representations or warranties of Seller contained in its obligations under this Agreement andor in breach of its representations and warranties contained herein (except in connection with a termination pursuant to Section 9.4.5 or 9.4.6), without prejudice to any other rights other than as provided in the case of clauses (A) and (B) aboveSection 10.4, such breach, failure or inaccuracy would give rise terminate their obligations under this Agreement by written notice to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure Fund if: 9.4.1 the Transaction has not been consummated on or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty Outside Date (30) days (or otherwise than as a result of a breach by any of the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach Purchasers of any of its representations, warranties, their covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closingobligations hereunder) and (B) Purchaser provided that the Purchasers may not terminate this Agreement pursuant to this Section 9.01(b)(ii9.4.1 if, at the proposed time of such termination, any condition in Section 7.4.1, 7.4.2, 7.4.3 and 7.4.5 has not been satisfied as a result of the action or inaction of either of the Purchasers; 9.4.2 a Termination Fee Event in Sections 10.1.1, 10.1.2, 10.1.3 or 10.1.4(i) during shall have occurred; 9.4.3 any of the pendency representations and warranties of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Fund Parties herein become untrue or inaccurate such that the condition contained in Section 10.15. (iii) This Agreement may 7.3.4 would not be terminated by Purchaser at any time satisfied on or prior to the ClosingOutside Date and, if a finalsuch untruth or inaccuracy is curable, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may such untruth or inaccuracy has not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation been cured within 30 days after written notice of the untruth or condition under this Agreement materially contributed inaccuracy is given to the cause Fund by the Purchasers, or there has been a breach on the part of any of the Fund Parties of any of its covenants or agreements herein such Closing Legal Impedimentthat the condition in Section 7.3.5 would not be satisfied on or prior to the Outside Date and, if such breach is curable, such breach has not been cured within 30 days after written notice of the breach given to the Fund by the Purchasers; 9.4.4 the Transaction Resolutions shall have not been approved at the Fund Meeting in the manner contemplated in Section 7.2.1; 9.4.5 there shall have been passed any Law which has the effect of making the consummation of the Transaction illegal or otherwise preventing or prohibiting the consummation of the Transaction; or 9.4.6 there shall have occurred a Material Adverse Effect since the date of this Agreement.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingClosing Date by Purchaser as follows: (a) [Intentionally omitted]; (b) if the Procedures Order is not entered by the Bankruptcy Court by May 31, 2018; (c) if the Sale Order is not entered by the Bankruptcy Court by July 26, 2019; (Ad) if there has been a material breach by a Seller, which breach such Seller shall have breached or has failed to comply, cure within ten (10) days following its receipt of written notice thereof from Purchaser; (e) if any condition precedent of Purchaser specified in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there Section 4.2 shall not have been a breach of satisfied or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement andwaived or, in the case reasonable judgment of clauses (A) and (B) abovePurchaser, such breach, failure or inaccuracy would give rise to the failure of a condition set forth in Section 7.01 shall have become reasonably unlikely to be satisfied, which breach, unless the failure or inaccuracy is not cured (if capable of being cured prior such condition to the Closing) within thirty (30) days (or have been satisfied was caused primarily by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in a material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing).Purchaser; (iif) This Agreement may be terminated by Purchaser if the Bankruptcy Court enters any Order approving any Alternative Transaction or confirming any Chapter 11 Plan involving any Alternative Transaction; (g) if the Closing Date shall not have occurred on or before 5:00 p.m. Pacific time on the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant but only to this Section 9.01(b)(ii) only if at the time extent the Closing has not occurred as of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (the Outside Date for reasons other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill meet its obligations hereunder; (h) if the Chapter 11 Case shall be dismissed or converted to cases under Chapter 7 of the Bankruptcy Code, or if any obligation trustee is appointed in the Chapter 11 Case; or (i) if for any reason (other than Purchaser’s failure to provide adequate assurance of future performance sufficient to satisfy the relevant requirements of Section 365 of the Bankruptcy Code or condition under this Agreement materially contributed applicable nonbankruptcy law and Section 365(c)(1) prohibits assignment without the counterparty’s consent) Sellers are unable, or fail, to assume and assign to Purchaser at the cause of such Closing Legal Impedimentall Purchased Contracts.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser and the transactions contemplated hereby may be abandoned at any time prior to the Closing, whether before or after the approval by the stockholders of Seller referred to in Section 8.1(a), by Purchaser (i) if the Seller Board shall have (A) failed to recommend the Acquisition Proposal to the Seller’s stockholders, (B) withdrawn or modified or qualified in a manner adverse to Purchaser its recommendation of the Acquisition Proposal (including by express communication to the Seller’s stockholders or by refusing to call the Seller Special Meeting or mail the Proxy Statement or submit the matters to a vote of the Seller’s stockholders), (C) failed to reconfirm its recommendation of this Agreement within five business days after a written request by Purchaser to do so, or (D) recommended to Seller’s stockholders that they approve, accept or tender their shares in response to any Alternative Proposal; (ii) if Seller or any of the other Restricted Persons shall take any other action that results in a material breach of Section 6.5; (iii) if the Seller shall have breached entered into (or failed the Seller Board shall have authorized the Seller to complyenter into) a letter of intent, agreement in principle, acquisition agreement or other similar undertaking with respect to any Alternative Proposal; or (iv) if Seller or the Netherlands Subsidiary breaches or fails in any material respect to perform or comply with any of its covenants or agreements contained herein, or breaches any of its representations and warranties in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the each case of clauses (A) and (B) abovethat is not curable, such breach, failure or inaccuracy would give rise to that the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to 8.2(a) cannot be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing)satisfied. (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. a. This Agreement is subject to the limitation that, (i) This Agreement may be terminated by Purchaser at any time prior to the Closing, if (A) whenever Seller shall have breached or failed fail to comply, in pay any material respect, with any undisputed portions of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise amounts which are owed to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) Purchaser within thirty (30) days of Purchaser's written demand therefor; or (ii) in the event five (5) or more Impermissible Interruptions occur in any three hundred sixty-five (365) day period; provided that Seller has not begun to and thereafter diligently proceeds to complete all efforts required to correct, to Purchaser's reasonable satisfaction, the causes of the event or events which led to the Impermissible Interruptions; or (iii) in the event Temporary Service is required to be supplied to the Premises from a portable unit which materially inconveniences Purchaser for more than ten (10) School Days (being herein defined as any day on which any academic programs are (or were) scheduled to be provided or conducted in any buildings on the Premises) in any fiscal year or for more than thirty (30) School Days in any five (5) year period; or (iv) whenever the Seller shall do, or permit anything to be done, whether by action or inaction, contrary to any material covenant or agreement on the Outside Datepart of Seller contained herein, or shall fail in the keeping or performance of any of the material covenants, agreements, terms or provisions of this Agreement which on the part or behalf of Seller are to be kept or performed, and Seller shall fail to commence to take steps to remedy the same within thirty (30) days after written notice shall have been given to Seller by Purchaser specifying the same, or, in the event the matter or thing complained of in said notice cannot reasonably be cured within said thirty (30) day period, then such additional period of time as is required to cure said default providing Seller shall diligently commence and shall thereafter diligently proceed to remedy the same; or (v) whenever an involuntary petition shall be filed against Seller under any bankruptcy or insolvency law or under the reorganization provisions of any law of like import, or a receiver of Seller or of or for the property of Seller shall be appointed without the acquiescence of Seller, or whenever this Agreement or the unexpired balance of the Term would, by operation of law or otherwise, except for this provision, devolve upon or pass to any person, firm or corporation other than Seller or a corporation in which Seller may be duly merged, converted or consolidated under statutory procedure, and such circumstance under this subparagraph (v) shall continue and shall remain undischarged or unstayed for an aggregate period of sixty (60) days (whether or not consecutive) or shall not be remedied by Seller within sixty (60) days; or (vi) whenever Seller shall make an assignment of the property of Seller for the benefit of creditors or shall file a voluntary petition under any bankruptcy or insolvency law, or whenever any court or competent jurisdiction shall approve a petition filed by Seller under the reorganization provisions of the United States Bankruptcy Code or under the provisions of any law of like import, or whenever a petition shall be filed by Seller under the arrangement provisions of the United States Bankruptcy Code or under the provisions of any law of like import, or whenever Seller shall desert or abandon the Demised Premises; THEN (providing Purchaser is not then in default of any of its obligations under this Agreement beyond any period provided for notice and an opportunity to cure the same, but regardless of and notwithstanding the fact the Purchaser has or may have some other remedy under this Agreement or by virtue hereof, or in law or in equity) Purchaser may, subject to the following provisions of this subparagraph, give to the Seller a notice (herein called the "second notice") of intention to end the Term of this Agreement specifying a day not less than ten (10) days thereafter as being the termination date hereof, and, upon the giving of the second notice, this Agreement and the term hereby granted shall expire and terminate upon the day so specified in the second notice as fully and completely and with the same force and effect as if soonerthe day so specified were the date hereinbefore fixed for the expiration of the Term of this Agreement and (except as provided in subparagraph 18(j) after receiving notice thereof from Purchaser; provided, that hereof) all rights of Seller under this Agreement shall thereupon expire and terminate. Any right Purchaser may have to terminate this Agreement by virtue of the occurrence of any event of the type delineated in Sections 6(a)(i) or (iii) hereof shall be expressly contingent upon Purchaser's giving Seller the second notice of Purchaser's intent to terminate this Agreement within one hundred eighty (180) days of the occurrence of the same; it being the intent of the parties that, unless Purchaser provides such notice within said time frame, Purchaser shall be deemed to have irrevocably waived its right to terminate this Agreement pursuant to this Section 9.01(b)(ii) only if subparagraph as a result of said event. The failure of Purchaser to exercise any right it otherwise has to terminate this Agreement by virtue of the occurrence of any such event shall not, however, constitute, or be deemed to, have caused, a waiver by Purchaser of any right it otherwise might then or thereafter have hereunder as a result of the occurrence of any other event. b. In addition to the foregoing rights, but not in derogation thereof, Purchaser shall not be required to pay any costs or fees hereunder during any period of time when Energy Products are not available hereunder at the time times and in the manner required hereby, prorated for the period of termination such failure to supply, excepting instances of scheduled system maintenance, when no abatement of fees or costs shall apply. In the event that Purchaser becomes entitled under this section to terminate this Agreement, then Purchaser and Seller agree that any damages which may be asserted by Purchaser to obtain a permanent supply of energy to enable it to heat and air condition the Premises shall be calculated net of any expenses saved as a consequence of the breach with any necessary capital costs being depreciated over not fewer than twenty (x20) Purchaser is not years, using the Purchaser's actual cost of capital. Except as provided in material subparagraphs 18(e) and (j) below or as otherwise specifically enumerated in this Agreement, neither party nor either party s parents, subsidiaries, affiliates, agents, officers, directors, officials, or employees shall be liable to the other party or said other party's parents, subsidiaries, affiliates, agents, officers, directors, officials or employees for claims for incidental, indirect or consequential damages, whether based on breach of warranty (express or implied), contract, tort or otherwise, connected with or resulting from, directly or indirectly, performance or non-performance by either party of any of its representations, warranties, covenants or agreements contained in obligations under this Agreement and (y) Purchaser has satisfied those conditions Agreement. c. Notwithstanding anything to the contrary set forth in Section 7.02 required this Agreement, so long as the Purchaser is the City of Hartford (the "City"), the Seller's obligation to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on provide any goods or before the Outside Date; provided, however, that (A) Purchaser may terminate services under this Agreement pursuant in any fiscal year, and the Purchaser's obligation to this Section 9.01(b)(ii) only if at pay the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance any such goods or services in any fiscal year (including, without limitation, any fixed or other charges which otherwise would be payable by the Purchaser regardless or whether any goods or services were in fact provided to the Purchaser that year), is expressly contingent upon the Purchaser's having first appropriated sufficient funds for that purpose for such year to cover the cost of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser same. If at any time prior the Purchaser knows or has reason to believe that it has failed to appropriate sufficient sums for said purpose, the ClosingPurchaser shall promptly notify the Seller of that fact, if a final, non-appealable Closing Legal Impediment and the Seller shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) then have the option to terminate this Agreement if Purchaser’s failure by providing the Purchaser with written notice to fulfill that effect in accordance with Section 19(e) of this Agreement. Any such termination shall be effective as of the latter of (i) the date through which the Purchaser reasonably can be expected to pay for any obligation and all charges hereunder that year by virtue of the sums appropriated for that purpose, or condition under (ii) the date specified in such notice as the last day through which the Seller intends to provide any goods or services hereunder. For purposes of this Agreement materially contributed to Agreement, a "fiscal year" shall be the cause period between July 1 of each calendar year and June 30th of the following calendar year, or such Closing Legal Impedimentother period of time which is adopted by the City as its official fiscal year.

Termination by Purchaser. (a) If (i) This Agreement may be terminated by Purchaser at any time prior all of Sellers’ conditions to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition Closing set forth in Section 7.01 9.1 (except for such conditions which by their terms were intended to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured satisfied at the Closing) were satisfied prior to the ClosingOutside Date and (ii) within thirty (30) days (the transactions contemplated by this Agreement are not consummated on or by before the Outside DateDate because of: (a) the failure of Sellers to materially perform any of their obligations hereunder, if sooneror (b) after receiving notice thereof from the failure of any of Sellers’ representations or warranties hereunder to be true and correct in all material respects as of the date hereof, then, in such event, Purchaser; provided, that Purchaser as its sole and exclusive remedy, may terminate this Agreement in which event the Escrow Agent shall, and Sellers shall cause the Escrow Agent to, pay the Deposit plus all interest and earnings accrued thereon to Purchaser. (b) In addition to Purchaser’s right to terminate this Agreement pursuant to this Section 9.01(b)(ii11.3(a) only above, Sellers shall be required to pay the Break Fee to Purchaser upon any such termination if at either of the time following two sets of termination criteria are met: (xi) Purchaser is not in material breach all of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those Sellers’ conditions to Closing set forth in Section 7.02 required to be satisfied by it 9.1 (other than those except for such conditions that which by their terms are were intended to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This were satisfied prior to the Outside Date, the Purchaser stands ready, willing, and able to close on the transactions contemplated by this Agreement, and the transactions contemplated by this Agreement may be terminated by Purchaser if the Closing shall are not have occurred consummated on or before the Outside Date; providedDate because of the refusal of Sellers to consummate the transactions contemplated herein (other than for the failure of Purchaser to materially perform any of its obligations hereunder), however, that or (Aii) Purchaser may exercises its right to terminate this Agreement pursuant to Section 11.3(a) based upon the Breach of Section 8.10 by any of the Restricted Parties, the Company or their respective representatives and Affiliates. (c) The Parties acknowledge and agree that, as of the date hereof: (i) the anticipated damages in case of such termination were difficult to ascertain; (ii) the Parties mutually intended to liquidate the damages in advance; (iii) the amount of such liquidated damages are a reasonable estimate of the potential actual damages any Breach would cause; and (iv) such liquidated damages are not so disproportionate to any possible loss as to constitute a penalty. Except otherwise provided in this Section 9.01(b)(ii) only if at the time 11.3 or in Section 7.1 and except for claims of termination (x) common law fraud or willful misconduct, Purchaser is not hereby irrevocably disclaims, waives and releases any and all claims against Sellers and all of their Affiliates arising in material breach of any of its representations, warranties, covenants connection with or agreements contained in related to this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at any of the Closing, each transactions contemplated hereby upon any termination of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15Agreement. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impediment.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at If any time prior condition precedent to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise to the failure of a condition Closing set forth in Section 7.01 to Sections 5.1, 5.2, 5.5, 5.6, 5.11, 5.12 or 5.13 cannot or will not be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured satisfied prior to the Closing, and Seller fails to cure any such matter within ten (10) within thirty (30) business days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the (or within such other time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained period specified in this Agreement and Agreement), Purchaser, at its option, may elect either (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iiia) to terminate this Agreement if Purchaser’s failure Agreement, in which event the Deposit shall be forthwith returned to fulfill any obligation Purchaser and all other rights and obligations of Seller and Purchaser hereunder shall terminate immediately, or (b) to waive its right to terminate and, instead, to proceed to Closing. If a condition under precedent to Closing set forth in Sections 5.3 and/or 5.8 of this Agreement materially contributed cannot or will not be satisfied prior to Closing, Seller may, at its option, elect to waive its rights under Sections 5.3 and/or 5.8 and, instead, proceed to Closing. Notwithstanding any termination hereof, the cause parties shall nevertheless remain liable under provisions of such Closing Legal Impedimentthis Agreement which expressly survive termination of this Agreement. If Purchaser terminates this Agreement as a consequence of a misrepresentation or breach of a warranty or covenant by Seller, or a failure by Seller to perform its obligations hereunder, Purchaser shall retain right to specific performance of this Agreement; furthermore, if Seller willfully fails to proceed to Closing, Purchaser may seek reimbursement of the costs and expenses actually paid by Purchaser to unrelated third parties in connection with the negotiation of this Agreement and the conduct of its tests, studies and investigations during the Study Period, however, in no event will Purchaser be entitled to seek any other damages, including without limitation, incidental or consequential damages, in connection with this Agreement or the transaction contemplated hereby.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingEffective Time if: (i) the Board or the Special Committee, if or any other committee of the Board, shall have: (A) Seller shall have breached or failed to complyunanimously recommend or withdrawn, qualified, amended or modified, or proposed or stated and intention publicly to withdraw, qualify, amend or modify, in a manner adverse to the Purchaser, its approval of the Arrangement or the Board Recommendation (it being understood that the taking of a neutral position or no position with respect to an Acquisition Proposal following the public announcement thereof for a period of no more than five Business Days shall not be considered an adverse modification); or (B) accepted, approved, endorsed or recommended, or proposed or stated an intention publicly to accept, approve, endorse or recommend, any material respectAcquisition Proposal or taken no position or remained neutral with respect to a publicly announced or otherwise publicly disclosed Acquisition Proposal for more than five Business Days; or (C) failed to reaffirm its approval of the Arrangement or the Board Recommendation as and when required under this Agreement or within five Business Days of being requested to do so by the Purchaser (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third business prior to the date of the Company Meeting) (together with any of Seller’s covenants or agreements contained the matters set forth in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement and, in the case of clauses (A) and (B), a “Change in Recommendation”); (ii) abovesubject to Section 6.3, such breach, failure or inaccuracy would give rise and provided that the Purchaser is not then in breach of its obligations under this Agreement so as to the failure of a cause any condition set forth in Section 7.01 7.3(a) [Performance of Covenants by the Purchaser] and Section 7.3(b) [Representations and Warranties of the Purchaser] not to be satisfied: (A) any breach of any representation or warranty of the Company under this Agreement would cause the condition contained in Section 7.2(b) [Company Reps and Warranties Condition] not to be satisfied, which breach, failure and such breach is incapable of being cured or inaccuracy is not cured in accordance with the terms of Section 6.3; or (if capable B) the Company is in breach of or fails to perform any of its covenants or obligations hereunder that would cause the condition contained in Section 7.2(a) [Performance of Covenants by the Company] not to be satisfied, and such breach is incapable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not cured in material breach accordance with the terms of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15.6.3; (iii) This Agreement may be terminated by Purchaser at the Company breaches any time prior of its covenants or agreements in Article 2 [Arrangement Covenants], Section 5.1 or Section 5.2 [Non-Solicit and Responding to a Superior Proposal Covenants]; or (iv) there has occurred a Material Adverse Effect after the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impedimentdate hereof.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the ClosingOffer Completion Date by Purchaser, if (Aa) Seller shall have breached there has been a breach by the Company of any representation or failed to comply, in any material respect, with any of Seller’s covenants or agreements warranty contained in this Agreement which is not curable or, if curable, is not cured within fifteen (15) calendar days after written notice of such breach is given by Purchaser to the Company, but in either event, only if such breach or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement andbreaches, in the case of clauses aggregate, could be reasonably expected to have a Material Adverse Effect, (Ab) and (B) above, such breach, failure or inaccuracy would give rise to the failure of there has been a condition set forth in Section 7.01 to be satisfied, which breach, failure or inaccuracy is not cured (if capable of being cured prior to the Closing) within thirty (30) days (or by the Outside Date, if sooner) after receiving notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, the covenants or agreements contained set forth in this Agreement and on the part of the Company, which breach is not curable or, if curable, is not cured within fifteen (y15) calendar days after written notice of such breach is given by Purchaser has satisfied those conditions set forth to the Company, (c) the Company Board or any committee thereof shall have (i) failed to recommend to the Shareholders that they accept the Offer or give the Company Shareholder Approval in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closingaccordance with this Agreement, each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by withdrawn or modified or proposed publicly to withdraw or modify in a manner adverse to Purchaser if its approval or recommendation of this Agreement, the Closing shall not have occurred on Offer or before the Outside Date; providedMerger or failed to reconfirm publicly and unconditionally its approval or recommendation within three (3) Business Days after a written request to do so, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach which public reconfirmation must also include an unconditional rejection of any of its representationsthen pending Company Takeover Proposal, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This approved or recommended, or proposed publicly to approve or recommend, a Company Takeover Proposal to the Shareholders, (iv) caused the Company to take any action referred to in Section 5.5 that would have constituted a breach thereof but for the exceptions thereunder, including without limitation authorizing the Company to enter into a Company Acquisition Agreement, (v) approved the breach of the Company’s obligation under Section 5.5, or (vi) resolved to take any of the foregoing actions, (d) the Company enters into any Company Acquisition Agreement, (e) there has been a material breach by any Shareholder holding at least one percent (1%) of all Shares that is a party to the Shareholders Agreement may be terminated of any representation or warranty or covenant contained in the Shareholders Agreement which is not curable or, if curable, is not cured within five (5) calendar days after written notice of such breach is given by Purchaser at any time prior to the ClosingCompany and such Shareholder, if a finalor (f) the Fairness Opinion shall have been withdrawn, non-appealable Closing Legal Impediment shall be limited or otherwise modified in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure to fulfill any obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impedimentrespect.

Termination by Purchaser. (i) This Agreement may be terminated by Purchaser at any time prior to the Closing, Closing if (A) Seller shall have breached or failed to comply, in any material respect, with any of Seller’s covenants or agreements contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement shall prove to have been inaccurate in any material respect when made and, in the case of clauses (A) and (B) above, such breach, failure or inaccuracy would give rise has a Material Adverse Effect as of the Closing, and Purchaser shall have given Seller a reasonable opportunity to the failure of a condition set forth in Section 7.01 to be satisfied, which breach, cure any such failure or inaccuracy is not cured (if capable of being cured prior to so comply before the Closing. (ii) within thirty This Agreement may be terminated by Purchaser if the Closing shall not have occurred on or before February 15, 2020 (30) days (or by as such date may be extended in accordance with the last sentence of this Section 9.01(b)(ii)), the “Outside Date, if sooner) after receiving notice thereof from Purchaser”); provided, however, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (xA) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (yB) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied performed by it Purchaser (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, Closing and could have been satisfied or would have been waived assuming a Closing would occur). The Outside Date shall automatically be extended up to two additional times for one month each of which is capable of being satisfied at the Closing). (ii) This Agreement may be terminated by Purchaser time if the Closing shall not have occurred on or before the Outside Date; provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it 7.01 (other than those conditions that by their terms are to be Section 7.01(f)) have been satisfied by actions taken at on the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate then expiring Outside Date as if such Outside Date were the Closing pursuant to Section 10.15Date. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, Closing if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) to terminate this Agreement if Purchaser’s failure Purchaser shall have failed to fulfill use reasonable best efforts to prevent the occurrence of any obligation such Closing Legal Impediment or condition under this Agreement materially contributed to the cause of remove or appeal as promptly as practicable any such Closing Legal Impediment.

Termination by Purchaser. Purchaser may terminate this Agreement by notice in writing to Sellers: (ia) This if any representation and warranty of Sellers in this Agreement may fails to be terminated by Purchaser at any time prior to the Closing, if (A) Seller shall have breached or failed to comply, in any material respect, with true and correct such that any of Seller’s the conditions set forth in Sections 6.2(a)(i) or 6.2(a)(ii) would not be satisfied or if Sellers breach, or fail to perform, their/its covenants or agreements obligations contained in this Agreement or (B) there shall have been a breach of or inaccuracy in any material respect when made with one or more of the representations or warranties of Seller contained in this Agreement andAgreement, in the case of clauses (A) and (B) aboveeach case, such breach, failure or inaccuracy would give rise to that the failure of a condition set forth in Section 7.01 6.2(a)(iii) would not be satisfied at the Closing (other than those conditions which by their nature are to be satisfiedfulfilled by actions taken at Closing), which breachand, in each case, such failure or inaccuracy is breach either cannot be cured (if capable of being cured prior to the Closing) within thirty (30) days or continues uncured for 10 Business Days (or by until the Outside Termination Date, if soonerearlier) after receiving the date on which Purchaser provides Agent (for an on behalf of Sellers) with written notice thereof from Purchaser; provided, that Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(iiof such failure or breach; (b) only if at the time of termination (x) Purchaser is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those the conditions set forth in Section 7.02 required to be satisfied by it 6.2 (other than those conditions that which by their terms nature are to be satisfied by actions taken at the ClosingClosing and other than those covered in Section 6.3(a)), each of which is capable of being satisfied at have not been fulfilled in all material respects or waived on or prior to the Closing).Termination Date; or (iic) This Agreement may be terminated by Purchaser if the Closing shall not have occurred mutual written consent of Agent (for and on or before the Outside Datebehalf of Xxxxxxx) and Xxxxxxxxx; in each case, provided, however, that (A) Purchaser may terminate this Agreement pursuant to this Section 9.01(b)(ii) only if at the time of termination (x) Purchaser is shall not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (y) Purchaser has satisfied those conditions set forth in Section 7.02 required to be satisfied by it (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing) and (B) Purchaser may not terminate this Agreement pursuant to this Section 9.01(b)(ii) during the pendency of any Legal Proceeding brought by Seller for specific performance of Purchaser’s obligation to consummate the Closing pursuant to Section 10.15. (iii) This Agreement may be terminated by Purchaser at any time prior to the Closing, if a final, non-appealable Closing Legal Impediment shall be in effect; provided, that Purchaser may not rely upon this Section 9.01(b)(iii) entitled to terminate this Agreement if Purchaser’s the failure or impossibility of satisfaction of the condition was as a result of the breach by Purchaser of any of its obligations under this Agreement. If Purchaser waives compliance with any of the conditions, obligations or covenants contained in this Agreement, the waiver will be without prejudice to fulfill any of its rights of termination, if any, in the event of non-fulfillment, non-observance or non-performance of any other condition, obligation or condition under this Agreement materially contributed to the cause of such Closing Legal Impedimentcovenant in whole or in part.