Common use of Termination Prior to Closing Clause in Contracts

Termination Prior to Closing. Notwithstanding the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By the mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own

Termination Prior to Closing. Notwithstanding any contrary provisions of this Agreement, this Agreement and the foregoing, respective obligations of the parties will be relieved of the obligation hereto to consummate the transaction contemplated hereby may be terminated and abandoned at any time at or before the Closing and purchase or sell the Assetsonly as follows: (a) By by either Buyer, on the one hand, or Seller, on the other hand, at the option of either Buyer or Seller, if the Closing shall not have occurred by June 30, 2008; provided that party seeking to terminate shall not have breached in any material respect its obligations under this Agreement in any manner that shall have been the proximate cause of, or resulted in, the failure to consummate the Closing; or (b) at any time, without liability of any party to the others, upon the mutual written consent of the Buyer Seller and the Seller;Buyer; or (bc) By the Seller in writing, without liability, if the by Buyer (i) fails to perform if Seller have breached in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties warranties, covenants or covenants other agreements contained hereinin this Agreement, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails breach or failure to perform in any material respect its agreements contained herein required to be performed by them on or prior (A) would give rise to the Closing Date, or failure of a condition set forth in Article VII and (iiB) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted or is incapable of being cured by Seller within sixty (60) 20 days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result its receipt of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the written notice thereof from Buyer; or (ii) individuals who, as if any of the date effects set forth in Section 7.05 (Litigation Affecting Closing) shall be in effect and shall have become final and nonappealable; or (d) by Seller, (i) if Buyer shall have breached in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, constitute which breach or failure to perform (A) would give rise to the Board failure of Directors a condition set forth in Article VIII, and (B) has not been or is incapable of the being cured by Buyer cease for any reason to constitute at least a majority within 20 days after its receipt of the Board of Directors of the Buyerwritten notice thereof from Seller; or (iiiii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all if any of the assets of the Buyer, if immediately after giving effects set forth in Section 8.03 (Litigation Affecting Closing) shall be in effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownand shall have become final and nonappealable.

Termination Prior to Closing. Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated, and the parties will be relieved of the obligation to consummate transactions contemplated by this Agreement abandoned, at any time before the Closing and purchase or sell the Assetsas follows: (a) By by the mutual written consent of the Buyer Seller and the SellerPurchaser; (b) By the by either Seller in writing, without liability, or Purchaser if the Buyer (i) fails to perform the Sale Motion has not been filed on the Petition Date, (ii) the Bid Procedures Order has not been entered in any material respect its agreements contained herein required to be performed the Bankruptcy Case by it on or prior to the Closing Datedate which is twenty (20) days following commencement of the Bankruptcy Case, 2015, (iii) the Sale Order has not been entered in the Bankruptcy Case by the date which is forty-six (46) days following commencement of the Bankruptcy Case, 2015, or (iiiv) materially breaches the Closing shall not have occurred by the date which is sixty (60) days following commencement of the Bankruptcy Case; provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur prior to such date; (c) by Purchaser, if (x) any of the representations and warranties of any Seller contained in this Agreement shall fail to be true and correct, or (y) there shall be a breach by any Seller of its representations, warranties covenants or covenants contained herein, which agreements in this Agreement that in either case (i) would result in the failure of a condition set forth in Section 5.1 and (ii) which is not curable or, if curable, is not cured within ten (10) calendar days after the Seller has notified the Buyer of its intent written notice thereof is delivered by Purchaser to Seller; provided, that Purchaser may not terminate this Agreement pursuant to this subparagraph;Section 7.1(c) if Purchaser is in material breach of this Agreement; or (cd) By the Buyer in writing, without liabilityby Seller, if (x) any of the Seller representations and warranties of Purchaser contained in this Agreement shall fail to be true and correct, or (y) there shall be a breach by Purchaser of its covenants or agreements in this Agreement that in either case (i) fails to perform would result in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or failure of a condition set forth in Section 6 and (ii) materially breaches any of its representationswhich is not curable or, warranties or covenants contained hereinif curable, which in either case is not cured within ten (10) calendar days after written notice thereof is delivered by Seller to Purchaser; provided, that Seller may not terminate this Agreement pursuant to this Section 7.1(d) if Seller is in material breach of this Agreement; or (e) by Purchaser (provided that Purchaser is not then in material breach of any provision of this Agreement), if (x) the Buyer Bankruptcy Case is dismissed or converted to Chapter 7 of the Bankruptcy Code or a Chapter 11 trustee is appointed for Seller, (y) the Bid Procedures Order or the Sale Order are entered in forms not acceptable to Purchaser, or (z) the Debtors have not complied with the Bid Procedures Order or the Sale Order; (f) by Seller in connection with Seller’s acceptance of an Alternative Transaction; (g) by Purchaser in the event that the First Day Motions, the First Day Orders, the DIP Order, and the DIP Budget are in a form not reasonably satisfactory to the Purchaser; (h) by either Purchaser or Seller in the event that Purchaser and Seller are unable to agree in writing upon either the (xx) form and substance of all Schedules and Exhibits hereto, or (yy) the final form and substance of the provisions of this Agreement, in each of the cases in clause (xx) and (yy) by the date which is seven (7) days following the Petition Date; and in the event that the Purchaser and Seller are not able to so agree (aa) Purchaser shall not be entitled to any Expense Reimbursement or Break Up Fee notwithstanding any other provision of this Agreement and (bb) the Escrow Holder shall return the Initial Deposit (together with all interest accrued thereon) to Purchaser notwithstanding any other provision of this Agreement. It is acknowledged and agreed that each of Purchaser and Seller may withhold its agreement to the Schedules and Exhibits and the final provisions of this Agreement in accordance with this Section 7.1(h) in its sole discretion without providing any reason therefor; (i) by either Purchaser or Seller in the event that the total Cure Costs payable with respect to the assumption and assignment of the Assumed Leases and Assumed Contracts at the Closing exceeds $300,000.00 (the “Overall Cure Cap”); provided, however, (i) any Purchaser Exclusive Costs shall not be taken into account for purposes of determining whether the Overall Cure Cap has notified been exceeded, and (ii) neither Purchaser nor Seller shall have the Seller of its intent right to terminate this Agreement pursuant to this subparagraphSection 7.1(i) in the event that the other party hereto agrees in writing to bear the amount of such excess itself and proceeds to pay the amount of such excess at Closing; (dj) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liabilitySeller, if there the condition set forth in Section 6.6 is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, satisfied as of the date of this AgreementClosing Date; or (k) by Purchaser, constitute the Board of Directors if Seller is not able to provide, within four (4) Business Days of the Buyer cease for any reason Effect Date, reasonable satisfaction to constitute at least a majority Purchaser of Seller’s ability to satisfy the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially owncondition set forth in Section 5.10(b).

Termination Prior to Closing. (a) Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated by Seller and/or Buyer, and the parties will be relieved of transactions contemplated by this Agreement abandoned, upon notice by the obligation terminating Party to consummate the Closing and purchase or sell the Assetsother Parties: (ai) By at any time before the Closing, by mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which by Buyer in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraphaccordance with Section 5.11; (ciii) By at any time before the Closing, by Buyer in writing, without liability, if on the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Dateone hand, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or other hand, in the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result event of the material breach of this Agreement by the party attempting non-terminating Party or if the satisfaction of any condition to terminate such Party’s obligations under this AgreementAgreement becomes impossible or impracticable with the use of commercially reasonable efforts and the failure of such condition to be satisfied is not caused by a breach by the terminating Party; (giv) By at any time after June 1, 2004 by Seller if the transactions contemplated by this Agreement have not been consummated on or before such date and such failure to consummate is not caused by a breach of this Agreement by Seller; (v) at any time after June 1, 2004 by Buyer if the transactions contemplated by this Agreement have not been consummated on or before such date and such failure to consummate is not caused by a breach of this Agreement by Buyer; (vi) by Buyer if any supplement to a Schedule delivered by Seller pursuant to Section 10.01(b) discloses any event or circumstance that Buyer, in writingits sole but reasonable discretion, without liabilitybelieves has had or will have a Material Adverse Effect; or (vii) by Buyer if, since February 29, 2004, any event, occurrence or development of a state of circumstances or facts has occurred which has had or reasonably could be expected to have a Material Adverse Effect, and Seller is not reasonably likely to cure or remediate, prior to June 1, 2004, the consequences of the Material Adverse Effect. (b) If this Agreement is validly terminated pursuant to this Section, this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective partners, officers, employees or other agents) except that, upon a "Change of Control" of Buyer (for purposes termination of this AgreementAgreement pursuant to subparagraphs (iii), a "Change of Control" means (iiv) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (iiv) individuals whoabove, as of the date of this Agreement, constitute the Board of Directors of the Seller will remain liable to Buyer cease and Buyer will remain liable to Seller for any reason breach of their respective obligations under Section 5.14 existing at the time of such termination, and each Party may seek such remedies or damages against the other with respect to constitute any such breach as are provided in this Agreement or as are otherwise available at least a majority of the Board of Directors of the Buyer; law or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownin equity.

Termination Prior to Closing. Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement may be terminated, and the parties will be relieved of transactions contemplated by this Agreement abandoned, at any time prior to the obligation Closing, upon notice by the terminating party to consummate the Closing and purchase or sell the Assetsother party as follows: (a) By by the mutual written consent of ParentCo (on behalf of the Buyer Sellers) and the SellerPurchaser; (b) By by either ParentCo (on behalf of the Seller in writingSellers) or the Purchaser if the Closing shall not have occurred prior to the date that is one hundred eighty (180) days after the date hereof (the “Termination Date”); provided, without liabilityhowever, that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur prior to such date; (c) (i) by ParentCo (on behalf of the Sellers), if the Buyer (i) Purchaser breaches or fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained hereinin this Agreement and such breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 7, which in either case is (B) cannot be or has not been cured within ten (10) days after Business Days following delivery of written notice of such breach or failure to perform, and (C) has not been waived by ParentCo (on behalf of the Seller has notified Sellers); or (ii) by the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liabilityPurchaser, if the any Seller (i) breaches or fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained hereinin this Agreement and such breach or failure to perform (X) would give rise to the failure of a condition set forth in Section 6, which in either case is (Y) cannot be or has not been cured within ten (10) days after Business Days following delivery of written notice of such breach or failure to perform, and (Z) has not been waived by the Buyer has notified Purchaser. (d) (i) by ParentCo (on behalf of the Seller Sellers), if any of its intent the conditions set forth in Section 7 shall have become incapable of fulfillment prior to the Termination Date, or (ii) by the Purchaser, if any of the conditions set forth in Section 6 shall have become incapable of fulfillment prior to the Termination Date; provided, however, that the right to terminate this Agreement pursuant to this subparagraph; (dSection 8.1(d) Subject shall not be available if the failure of the party so requesting termination to Section 5.5 hereof, by either fulfill any obligation under this Agreement shall have been the Seller cause of the failure of such condition to be satisfied on or prior to the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency;Termination Date. (e) By by either ParentCo (on behalf of the Buyer in writing, without liabilitySellers) or the Purchaser, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writingBankruptcy Court approves a sale, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale transfer or other disposition by the Sellers of all or substantially all of the assets Transferred Assets of the BuyerSeller relating to the Business to a Person (or group of Persons) other than the Purchaser (a “Competing Transaction”); or (f) by the Purchaser (provided that the Purchaser is not then in material breach of any provision of this Agreement), if immediately any of the following shall occur: (i) the Bankruptcy Case is dismissed or converted to one or more proceedings under chapter 7 of the Bankruptcy Code, a trustee or examiner is appointed for the Seller, or the automatic stay under section 362 of the Bankruptcy Code is lifted as to any material Transferred Asset; or (ii) the Sale Approval Order has not been entered by the Bankruptcy Court within ninety (90) days after giving effect the date hereof; provided, however, that the Purchaser shall not be entitled to exercise its rights under this clause (ii) later than five (5) Business Days after such transaction ninety (90)-day period has expired or if the individuals or entities who beneficially own voting securities immediately Sale Approval Order has been entered by the Bankruptcy Court prior to the Purchaser exercising such transaction beneficially ownrights.

Termination Prior to Closing. Notwithstanding anything herein to the foregoingcontrary, the parties will this Agreement may be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By the mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer terminated at any time: (i) fails to perform in any material respect its agreements contained herein required to be performed by it on at or prior to the Closing Dateby mutual, or written consent of Sellers and Buyers; (ii) materially breaches by Buyers by written notice to Sellers if any event occurs or condition exists which causes Sellers to be unable to satisfy one or more conditions to the obligations of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after Buyers to consummate the Seller has notified the Buyer of its intent to terminate transactions contemplated by this Agreement pursuant as set forth in Section 7; (iii) by Sellers by written notice to Buyers if any event occurs or condition exists which causes Buyers to be unable to satisfy one or more conditions to the obligation of Sellers to consummate the transactions contemplated by this subparagraph; Agreement as set forth in Section 8; (civ) By by Buyers or Sellers if any federal or state agency, including without limitation, the Buyer FTC or the Office of the Attorney General of the State of Florida, states an intention to continue or continues to investigate the transactions contemplated by this agreement beyond the expiration of the HSR Act’s initial thirty (30)-day waiting period (or, in the event of a mutually agreed upon “withdraw and refile,” beyond the expiration of the second thirty (30)-day waiting period triggered by such refiling) or has requested, orally or in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating that the transactions contemplated herebyby this Agreement be delayed or postponed; (v) by Sellers or Buyers if the Closing shall not have taken place on or before 5:00 p.m. Central Time on December 29, 2023 (which date may be extended by mutual agreement of Sellers and Buyers) (and, notwithstanding the provisions of Section 2.1 to the contrary, any such Closing that occurs on December 29, 2023 would have an Effective Time of 12:00:01 a.m. on January 1, 2024), provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects right to terminate pursuant to Section 6.1 this subsection (v) shall not be available to any party whose breach or Section 6.2 hereof; (f) By either default of any obligation or provision under this Agreement has been the Seller cause of, or resulted in, the Buyer in writing, without liability, if for any reason failure of the Closing has not occurred to occur by March 31, 1999 other than as a result of the breach of this Agreement such date; (vi) by the party attempting either Sellers or Buyers pursuant to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the BuyerSection 12.1 hereof; or (iivii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason by Buyers pursuant to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownSection 6.3 hereof.

Termination Prior to Closing. Notwithstanding the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By Notwithstanding anything herein to the mutual written consent contrary, this Agreement may be terminated at any time upon the occurrence of any one of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer following (i) fails automatically on the date upon which Buyer advises Seller in writing prior to perform in any material April 1, 2012 that Buyer is unsatisfied with its due diligence investigation of and with respect its agreements contained herein required to be performed by it the Hospital Facilities and Purchased Assets, (ii) on or prior to the Closing Date, or Date by mutual consent of Seller and Buyer; (iiiii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing DateDate by Buyer, if satisfaction of any condition to Buyer’s obligations under Section 7 of this Agreement becomes impossible with the use of commercially reasonable efforts (unless the failure results primarily from Buyer’s breaching any material representation, warranty or covenant herein) and such condition shall not have been waived by Buyer; (iv) on or prior to the Closing Date by Seller, if satisfaction of any condition to Seller’s obligations under Section 8 of this Agreement becomes impossible with the use of commercially reasonable efforts (unless the failure results primarily from Seller’s breaching any material representation, warranty, or covenant herein) and such condition shall not have been waived by Seller; (iiv) materially breaches any of its representationsby Buyer if a Material Adverse Effect shall have occurred to Seller prior to Closing which shall not have been remedied or shall cease to exist, warranties or covenants contained herein, which in either case is not cured case, within ten (10) days Business Days after the occurrence thereof, (vi) by Buyer has notified or Seller if the Seller Closing Date shall not have taken place by July 31, 2012 unless extended by mutual agreement of its intent Buyer and Seller, provided, however, that (A) Buyer shall only have the right to terminate this Agreement if at such time Buyer is not in breach of any representation, warranty or covenant of Buyer set forth herein and (B) Seller shall only have the right to terminate this Agreement if at such txxx Xxxxxx is not in breach of any representation, warranty or covenant of Seller set forth herein; or (vii) by Buyer pursuant to this subparagraph;Sections 10.14 or 6.2 hereof. (db) Subject In the event of termination of this Agreement in accordance with Section 10.1, this Agreement will forthwith become void and have no effect, except that the provisions of this Section 10.1 and Article 12 will survive any termination hereof; provided, that (a) termination pursuant to clause (iii) or (iv) of Section 10.1 shall not relieve a defaulting or breaching party from any Liability to the other party resulting from any default or breach hereunder and (b) nothing herein shall relieve any party from liability for any fraud, willful breach or willful misrepresentation of this Agreement. For the avoidance of doubt and notwithstanding this Section 10.1(b), upon the termination of this Agreement pursuant to Section 5.5 hereof10.1(a)(i) and the payment of $100,000 to Seller out of the Exxxxxx Money Deposit, by either neither Buyer nor Seller shall have any further liability to the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating other with respect to the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated and the foregoing, transactions contemplated hereby may be abandoned at any time prior to the parties will be relieved of the obligation to consummate the Closing and purchase or sell the AssetsClosing: (a) By the by mutual written consent of the Buyer Seller and the SellerPurchaser; (b) By the Seller in writing, without liabilityby either Purchaser or Seller, if a Governmental Entity shall have issued an order, decree or ruling or taken any other action, in each case permanently restraining, enjoining or otherwise prohibiting the Buyer transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable; (c) by Purchaser, at any time when Seller is in breach of any of their covenants pursuant to this Agreement or if any representation or warranty of Seller is false or misleading (in each case except such as could not individually or in the aggregate reasonably be expected to have a Material Adverse Effect and provided that such condition is not the result of any breach of any covenant, representation or warranty of Purchaser set forth herein); provided that (i) fails to perform such breach shall not have been cured, in any material respect its agreements contained herein required to be performed the case of a covenant, within forty-five (45) days following receipt by it Seller of notice from Purchaser of such breach or, in the case of a representation or warranty, on or prior to the Closing Datedate on which the conditions other than the accuracy of the representation and warranty in question would be satisfied for the Closing, or and (ii) materially in the case of a breach of representation or warranty or an unintentional breach of a covenant that relates to specific Projects or Project Partnerships, Seller may elect to exercise a Project Removal Option with respect to the Project(s) to which such breach of representation or warranty or an unintentional breach of a covenant relates (in which case Purchaser’s termination shall not be effective if such Project Removal effectively cures all breaches with respect to which Purchaser was exercising its termination right pursuant to this Subsection (c)); provided that Seller may not exercise any Project Removal Option pursuant to this Section 8.4(c) that would cause the aggregate Allocated Values of all Projects removed by Seller pursuant to this Section 8.4(c) or pursuant to Section 8.3(a) to exceed $25,000,000; (d) by Seller, at any time when Purchaser is in breach of any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, Agreement or if the Seller (i) fails to perform any representation or warranty of Purchaser is false or misleading in any material respect its agreements contained herein required to be performed respect; provided that such condition is not the result of any breach of any covenant, representation or warranty of Seller set forth herein; and provided further that such breach shall not have been cured, in the case of a covenant (other than payment of the Purchase Price), within forty-five (45) days following receipt by them the Purchaser of notice of such breach or, in the case of a representation or warranty, on or prior to the Closing Date, or (ii) materially breaches any date on which the conditions other than the accuracy of its representations, warranties or covenants contained herein, which the representation and warranty in either case is not cured within ten (10) days after question would be satisfied for the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated herebyClosing; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency;or (e) By by either Purchaser, on the Buyer in writingone hand, without liabilityor Seller, on the other hand, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred on or before the Drop Dead Date by March 31, 1999 other than as a result reason of the failure of a Closing condition to occur which failure has not been cured under Section 8.3; provided, however, that (i) the right to terminate this Agreement shall not be available to any Party whose breach of this Agreement by has been the party attempting to terminate this Agreement; (g) By Seller in writingcause of, without liabilityor resulted in, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more failure of the voting securities of the Buyer; Closing to occur on or before such date, and (ii) individuals whoif the Required Consents are not obtained by the Drop Dead Date, as either Party may extend the Drop Dead Date by up to three successive thirty day periods by notice given to the other Party at least three business days prior to the then current scheduled Closing Date for the purpose of continuing to attempt to obtain any remaining Required Consents (it being understood that the Drop Dead Date may not be extended beyond the date that is 90 days after the original Drop Dead Date without the consent of both Parties). The extension option described in clause (ii) of the date of preceding sentence shall continue to apply with respect to obtaining Required Consents relating to any Consent Removal Projects. (f) If an initial Closing occurs and this AgreementAgreement is subsequently terminated, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of provisions hereof which would otherwise survive a Closing shall continue to survive to the Buyer, if immediately after giving effect extent provided herein (e.g. termination following an initial Closing shall not cause representations and warranties that would otherwise survive Closing to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially owninstead be terminated).

Termination Prior to Closing. (a) Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated, and the parties will be relieved of transactions contemplated by this Agreement abandoned, upon notice by the obligation terminating Party to consummate the Closing and purchase or sell the Assetsother Parties: (ai) By at any time before the Closing, by mutual written consent of the Buyer and the SellerSellers; (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which by Buyer in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraphaccordance with Section 5.12; (ciii) By at any time before the Closing, by Buyer in writing, without liability, if on the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Dateone hand, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding Sellers on the Buyer or other hand, in the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as event of a result of the breach of this Agreement by the party attempting non-terminating Party which is not cured by such breaching Party by the earlier of 30 days after receipt of written notice specifying the alleged breach and June 30, 2000, or if the satisfaction of any condition to terminate such Party's obligations under this Agreement becomes impossible or impracticable with the use of commercially reasonable efforts and the failure of such condition to be satisfied is not caused by a breach by the terminating Party; (iv) by Sellers or Buyer, if Buyer does not have sufficient funds available to pay the Purchase Price on the date set for Closing pursuant to Section 8.01(a); (v) by Sellers if, as a result of an Alternative Proposal received by any Seller from a Person other than Buyer or any of its Affiliates, the board of directors or trustees of any Seller determines in good faith that its fiduciary obligations under applicable law require that such Alternative Proposal be accepted; provided that (i) the board of directors or trustees of such Seller shall have determined in good faith, after considering applicable provisions of state law and after giving effect to all concessions, if any, which have been offered by the Buyer pursuant to clause (ii) of this paragraph, on the basis of oral or written advice of outside counsel, that such action is required by its fiduciary obligations under applicable law, and (ii) prior to any such termination, such Seller shall, and shall cause its financial and legal advisors to, negotiate with Buyer to make such adjustments in the terms and conditions of this Agreement as would enable Buyer to proceed with the transactions contemplated hereby; (vi) at any time prior to the close of business on October 20, 1999 by Buyer if Buyer has not obtained by such time the written consent of Xxxxxx Xxxxxxx Capital Partners III, L.P. and Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital Partners IV, L.P. pursuant to section 4.02(a) of the Shareholders Agreement to the transactions contemplated by this Agreement; (gvii) By Seller at any time after June 30, 2000 by Sellers if the transactions contemplated by this Agreement have not been consummated on or before such date and such failure to consummate is not caused by a breach of this Agreement by Sellers; (viii) at any time after June 30, 2000 by Buyer if the transactions contemplated by this Agreement have not been consummated on or before such date and such failure to consummate is not caused by a breach of this Agreement by Buyer; (ix) by Buyer if, since June 30, 1999, a material adverse change in writingthe Assets or results of operations, without liabilityfinancial condition or prospects for future operations of the Hospital Businesses, taken as a whole, has occurred; or (x) by Sellers or Buyer in accordance with Section 11.01(c). (b) If this Agreement is validly terminated pursuant to this Section, this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective officers, directors, trustees, employees, agents, consultants or other representatives) except as expressly provided otherwise in Section 8.05 and except that, upon a "Change of Control" of Buyer (for purposes termination of this AgreementAgreement pursuant to subparagraphs (iii), a "Change of Control" means (ivii) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (iiviii) individuals whoabove, as of the date of this Agreement, constitute the Board of Directors of the Sellers will remain liable to Buyer cease and Buyer will remain liable to Sellers for any reason breach of their respective obligations under Section 5.19 existing at the time of such termination, and each Party may seek such remedies or damages against the other with respect to constitute any such breach as are provided in this Agreement or as are otherwise available at least a majority of law or in equity. No termination shall be effective pursuant to Section 8.04(a)(iv) or 8.04(a)(v) unless concurrently with such termination, the Board of Directors of the Buyer; or (iii) the consummation termination fee is paid in full by the Buyer applicable party in accordance with the provisions of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownSection 8.05.

Termination Prior to Closing. Notwithstanding the foregoing, the parties will This Agreement may be relieved of the obligation terminated prior to consummate the Closing and purchase or sell the Assetsas follows: (a) By the by mutual written consent agreement of the Buyer and the SellerCompany; (b) By by the Seller in writing, without liabilityBuyer or the Company, if there shall be in effect a Final Order restraining, enjoining or otherwise prohibiting the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed consummation of the transactions contemplated by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraphAgreement; (c) By by the Buyer (provided, however, that the Buyer is not then in writingmaterial breach of any representation, without liabilitywarranty, covenant or other agreement contained herein), if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches there shall have been a breach of any of its representations, the representations or warranties of the Sellers that would have a Material Adverse Effect or a material breach of any of the covenants contained hereinset forth in this Agreement on the part of the Sellers, which in either case breach is not cured within ten (10) days after 15 Business Days following written notice to the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraphCompany; (d) Subject to Section 5.5 hereofby the Company (provided, by either however, that none of the Seller Sellers is then in material breach of any representation, warranty, covenant or the Buyer in writing, without liabilityother agreement contained herein), if there is issued any order, writ, injunction or decree shall have been a breach of any court of the representations or governmental or regulatory agency binding warranties that would have a material adverse effect on the Buyer Buyer's ability to perform its obligations hereunder or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating to consummate the transactions contemplated herebyherein or a material breach of any of the covenants set forth in this Agreement on the part of the Buyer, which breach is not cured within 15 Business Days following written notice to the Buyer; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency;104 (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof[Intentionally Omitted]; (f) By either [Intentionally Omitted]; (g) by the Seller Buyer or the Buyer in writing, without liabilityCompany, if for any reason the Closing Funding Date has not occurred by March 31the Drop Dead Date; provided, 1999 other than as a result however, that such failure of the Funding Date to occur is not caused by a breach of this Agreement by the party attempting to terminate this Agreementterminating party; (gh) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means [Intentionally Omitted]; (i) the acquisition [Intentionally Omitted]; (i) by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer, in the event either that the Shortfall Amount is $50 million or more; or or (ii) individuals whoby the Company, as of in the date of this Agreementevent the Shortfall Amount is $50 million or more, constitute the Board of Directors of unless the Buyer cease for any reason elects to constitute at least a majority of consummate the Board of Directors of transactions contemplated in this Agreement and other Transaction Documents and pay the Buyer; or (iiiamount set forth in Section 2.4(b)(i) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownhereof.

Termination Prior to Closing. Notwithstanding any other provision to the foregoingcontrary herein, the parties will this Agreement may be relieved of the obligation to consummate the Closing and purchase or sell the Assetsterminated at any time: (a) By without liability on the part of any Party hereto (unless occasioned by reason of failure of one of the Parties hereto to perform its obligations hereunder), by mutual written consent of the Buyer and the Sellerall Parties to this Agreement; (b) By without liability on the Seller in writingpart of any Party hereto (unless occasioned by reason of failure of one of the parties hereto to perform its obligations hereunder), without liabilityby either Eclipsys or SDK, if the Buyer transactions contemplated hereby are not consummated on or before June 15, 1997, or such later date as may be agreed upon in writing by the Parties hereto (the "Termination Date"); (c) by Eclipsys if: (i) fails to perform SDK and/or any of the Selling Stockholders shall breach in any material respect its agreements contained herein required to any of their respective representations, warranties, covenants or other obligations hereunder; (ii) Eclipsys shall have notified SDK and the Selling Stockholders in writing of such breach; (iii) such breach shall not have been cured in all material respects or waived by Eclipsys; and (iv) SDK or the Selling Stockholders, as the case may be, shall not have provided reasonable assurance that such breach shall be performed by it cured in all material respects on or prior to before the Closing Date, ; or (d) by SDK or the Selling Stockholders if: (iii) materially breaches Eclipsys shall breach in any material respect any of its representations, warranties or covenants contained hereinobligations hereunder; (ii) SDK shall have notified Eclipsys in writing of such breach; (iii) such breach shall not have been cured in all material respects or waived; and (iv) Eclipsys shall not have provided reasonable assurance that such breach shall be cured in all material respects on or before the Closing Date. Notwithstanding anything herein to the contrary, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate if this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to shall be performed by them on or terminated prior to the Closing DateClosing, no Party hereto shall have any liability to any other Party unless such termination results from a material breach of the representations and warranties contained in Articles 3 or (ii) materially breaches 4 or of the covenants in this Article 5. In the event any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent Party fails to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating consummate the transactions contemplated hereby; provided that hereby in accordance with the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes terms of this Agreement, a "Change of Control" means (i) the acquisition by or breaches any individualrepresentations, corporationwarranty, company, association, joint venture covenant or other entityobligation contained herein which is a condition precedent to the other Party's obligation to close, of beneficial ownership of 25% the damaged Party shall have the right to pursue all available remedies at law or more in equity, including specific performance. Each Party acknowledges that, in light of the voting securities unique benefit to it of the Buyer; or (ii) individuals who, as of the date of its rights under this Agreement, constitute the Board such remedies shall be available in respect of Directors any such breach or violation by it in any proceeding properly instituted in a court of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially owncompetent jurisdiction.

Termination Prior to Closing. Notwithstanding (a) This Agreement may be terminated at any time following the foregoing, the parties will be relieved of the obligation Effective Date and prior to consummate the Closing and purchase or sell the AssetsDate: (ai) By the mutual written consent of the Buyer Parties; (ii) By the Series if there has been a material violation, breach or inaccuracy of any representation, warranty, covenant or agreement of the Seller contained in this Agreement and such violation, breach or inaccuracy has not been waived by the Series or cured by the Seller, as applicable, within five (5) Business Days after receipt by the Seller of written notice thereof from the Series; (iii) By the Seller if there has been a material violation, breach or inaccuracy of any representation, warranty, covenant or agreement of the Series contained in this Agreement, and such violation, breach or inaccuracy has not been waived by the Seller or cured by the Series, applicable, within five (5) Business Days after receipt by the Series of written notice thereof from the Seller; (biv) By the Seller in writing, without liabilityany Party, if a court of competent jurisdiction or other Governmental Authority shall have issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transactions and such order or action shall have become final and nonappealable; or (v) By either Party in the event that the Closing has not occurred within one hundred and eighty (180) days of the Effective Date, which may be extended by sixty (60) days by the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to advancing a refundable deposit of $22,050, provided however, that a Party shall not have the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent right to terminate this Agreement pursuant to the provisions of this subparagraph;Section 5.01(a)(v) in the event that the reason for the failure of the Closing to occur was the breach of or default under this Agreement by such Party. (cb) By the Buyer in writing, without liability, if the Seller (i) fails to perform in Upon any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any termination of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof5.01, by either the Seller this Agreement shall thereafter be of no further force or the Buyer in writing, effect without liability, if there is issued any order, writ, injunction or decree liability of any court Party (or governmental any director, officer, employee, Affiliate, agent or regulatory agency binding on other representative of such Party or Parties) to any other Party or Parties hereto, as applicable, except (a) for the Buyer or terms of this Section 5.01, Article VI and Article VII, each of which shall survive the Seller which prohibits or materially restrains the Buyer or the Seller termination of this Agreement, and (b) nothing in this Agreement shall relieve any Party from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if liability for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to any such transaction beneficially owntermination.

Termination Prior to Closing. Notwithstanding the foregoing, the parties will This Agreement may be relieved of the obligation terminated prior to consummate the Closing and purchase or sell the Assetsas follows: (a) By the by mutual written consent agreement of the Buyer and the SellerCompany; (b) By by the Seller in writing, without liabilityBuyer or the Company, if there shall be in effect a Final Order restraining, enjoining or otherwise prohibiting the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed consummation of the transactions contemplated by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraphAgreement; (c) By by the Buyer (provided that Buyer is not then in writingmaterial breach of any representation, without liabilitywarranty, covenant or other agreement contained herein), if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches there shall have been a breach of any of its representations, the representations or warranties of Sellers which would have a Material Adverse Effect or a material breach of any of the covenants contained hereinset forth in this Agreement on the part of the Sellers, which in either case breach is not cured within ten 30 days following written notice to the Company (10) days after the Buyer has notified the Seller so long as such breach is capable of its intent to terminate this Agreement pursuant to this subparagraphbeing cured); (d) Subject to Section 5.5 hereofby the Company (provided that none of the Sellers is then in material breach of any representation, by either the Seller warranty, covenant or the Buyer in writing, without liabilityother agreement contained herein), if there is issued any order, writ, injunction or decree shall have been a breach of any court of the representations or governmental warranties which would have a material adverse effect on Buyer's ability to perform its obligations hereunder or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating to consummate the transactions contemplated hereby; provided that herein or a material breach of any of the covenants set forth in this Agreement on the part of the Buyer, which breach is not cured within 30 days following written notice to the Buyer and the Seller have used their reasonable, good faith efforts to have any (so long as such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agencybreach is capable of being cured); (e) By by the Buyer in writing, without liabilityBuyer, if Buyer elects to terminate pursuant to by the respective dates required by Section 6.1 5.8 hereof the Chapter 11 Case shall not have commenced or Section 6.2 hereofthe Interim 9019 Order, the Bidding Procedures Order, the 9019 Order or the Sale Order shall not have been entered, or if any such Orders are vacated, reversed, modified, amended or stayed; (f) By either by the Seller Buyer or the Buyer in writing, without liabilityCompany, if the Company accepts a higher and better offer for the Purchased Assets in accordance with Section 5.8 hereof and the Bidding Procedures Order (other than of the Buyer); (g) by the Buyer or the Company, if the Bankruptcy Court enters an order approving any reason Acquisition Proposal (other than a sale of the Purchased Assets to the Buyer); (h) by the Buyer or the Company, if the Closing has not occurred by March 31June 1, 1999 other than as a result 2003, provided such failure of the Closing to occur is not caused by a breach of this Agreement by the party attempting terminating party, provided, that the Buyer shall be entitled to terminate this Agreementextend such date for an additional period of up to 90 days if such failure to close is a result of the condition set forth in Section 6.4 to be satisfied; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect the Credit Commitments (as defined in the DIP Loan) shall have been terminated or the Loans (as defined in the DIP Loan) shall have been declared due and payable, in each case pursuant to such transaction Section 9.2 of the individuals DIP Loan; or (j) if the Bankruptcy Court declines to enter the Sale Order because the Bankruptcy Court finds that the sale of the Purchased Assets under this Agreement can only be approved through or entities who beneficially own voting securities immediately prior to such transaction beneficially ownin the context of a plan of reorganization.

Termination Prior to Closing. Notwithstanding the foregoing, the parties will This Agreement may be relieved of the obligation terminated prior to consummate the Closing and purchase or sell the Assetsas follows: (a) By the mutual written consent of the Buyer Equityholders’ Representative, on the one hand and Buyer, on the Sellerother hand; (b) By Buyer at any time prior to the Seller in writing, without liabilityClosing, if the Buyer (i) fails to perform the Constituent Companies, Largus or the Equityholders are in any material respect its agreements contained herein required to be performed by it on or prior to breach of the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained hereinmade by the Constituent Companies, which Largus or the Equityholders in either case this Agreement, (ii) such breach is not cured within ten or capable of being cured by the earlier of the day prior to the Termination Date and thirty (1030) days after following written notice of such breach from Buyer (to the Seller has notified extent such breach is curable) and (iii) such breach, if not cured, would render the conditions set forth in Sections 7.1 or 7.3 incapable of being satisfied; (c) By the Equityholders’ Representative at any time prior to the Closing, if (i) Buyer is in breach of its intent the representations, warranties or covenants made by it in this Agreement, (ii) such breach is not cured or capable of being cured by the earlier of the day prior to the Termination Date and thirty (30) days following written notice of such breach from the Equityholders’ Representative (to the extent such breach is curable) and (iii) such breach, if not cured, would render the conditions set forth in Sections 7.1 or 7.2 incapable of being satisfied; (d) By the Equityholders’ Representative, on the one hand, or Buyer, on the other hand, if the Closing shall not have occurred by August 4, 2018 (the “Termination Date”); provided, however, that (i) the Equityholders’ Representative shall not be entitled to terminate this Agreement pursuant to this subparagraph; (cSection 8.1(d) By the Buyer in writing, without liability, if the Seller (i) fails to perform Constituent Companies, Largus or any Equityholder has breached this Agreement and such breach has resulted in any material respect its agreements contained herein required the failure of a condition in Sections 7.1 or 7.3 to be performed by them on or prior to the Closing Date, or satisfied and (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is Buyer shall not cured within ten (10) days after the Buyer has notified the Seller of its intent be entitled to terminate this Agreement pursuant to this subparagraph; (dSection 8.1(d) Subject if Buyer has breached this Agreement and such breach has resulted in the failure of a condition in Sections 7.1 or 7.2 to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated herebybe satisfied; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency;or (e) By the Buyer in writingEquityholders’ Representative, without liabilityon the one hand or Buyer, on the other hand, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by Contemplated Transactions shall violate any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; Order that shall have become final and nonappealable or (ii) individuals whothere shall be a Law which makes the Contemplated Transactions illegal or otherwise prohibited; provided, as of however, that the date Party seeking termination pursuant to this clause (e) is not then in material breach of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated at any time prior to the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the AssetsClosing: (a) By the mutual written consent of all the Buyer and the Sellerparties hereto; (b) By the Seller BIH in writing, without liability, if the Buyer Coke Northeast or Enterprises shall (i) fails fail to perform in any material respect its agreements contained herein or in any of the Buyer Documents required to be performed by it on or prior to the Closing Date, or (ii) materially breaches breach in any material respect any of its representations, representations or warranties contained herein or covenants contained hereinin any of the Buyer Documents, which failure or breach in either case is not cured within ten thirty (1030) days after the Seller BIH has notified the Buyer Coke Northeast and Enterprises of its intent to terminate this Agreement pursuant to this subparagraphArticle VII; (c) By the Buyer Coke Northeast in writing, without liability, if the Seller BIH or TCCC shall (i) fails fail to perform in any material respect its agreements 15 contained herein or in any of the Seller Documents required to be performed by them it on or prior to the Closing Date, or (ii) materially breaches breach in any material respect any of its representations, representations or warranties contained herein or covenants contained hereinin any of the Seller Documents, which failure or breach in either case is not cured within ten thirty (1030) days after the Buyer Coke Northeast has notified the Seller BIH and TCCC of its intent to terminate this Agreement pursuant to this subparagraphArticle VII; (d) Subject to Section 5.5 hereof, by By either the Seller BIH or the Buyer Coke Northeast in writing, without liability, if there is issued shall be any final, non-appealable order, writ, injunction or decree of any court or governmental or regulatory agency Governmental Authority binding on the Buyer Enterprises, Coke Northeast, BIH or the Seller TCCC, which prohibits or materially restrains the Buyer Enterprises, Coke Northeast, BIH or the Seller TCCC from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency;or (e) By the Buyer in writingeither BIH or Coke Northeast, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result the first anniversary of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes execution of this Agreement, a "Change of Control" means (i) unless the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more failure of the voting securities Closing to occur by such date is due to the failure of the Buyer; party seeking to terminate this Agreement to perform or (ii) individuals who, as observe the covenants and agreements of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownparty set forth herein.

Termination Prior to Closing. Notwithstanding the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By Purchaser may terminate this Agreement prior to the mutual written consent expiration of the Buyer Due Diligence Period in accordance with paragraph 8(a) and receive a full refund of all Xxxxxxx Money paid, in which event neither party shall have any liability to the Seller;other. (b) By the Seller MDC may terminate this Agreement if Purchaser shall have failed for any reason to obtain written, executed commitments for financing of not less than $12,500,000 by April 1, 2000 or within such longer period to which MDC may in its sole discretion agree in writing; provided that any such commitments obtained by Purchaser must be from reputable lender(s) and/or investor(s) with the financial ability immediately to perform under the commitments (as reasonably determined by MDC) and must be conditioned only upon Closing, without liabilityreleases of liens against MDC's assets (other than liens described on Schedule 6(h)), and the execution of documents already approved as to form by the lender(s) or investor(s) and Purchaser. Purchaser shall promptly furnish any information requested by MDC to evaluate any financing commitment, and shall permit MDC to communicate with the financing sources to verify the financing. MDC shall not be required to take risks with respect to whether any funding source will be capable of performing under its financing commitment. In addition, MDC may terminate this Agreement if Purchaser has notified MDC prior to April 1, 2000 that Purchaser has determined it will not be able to obtain financing as necessary to consummate the sale of the Stock pursuant to this Agreement. (c) MDC may terminate this Agreement if any consents or approvals of a third party that are required under the terms of a material contract or lease upon the sale of the Stock cannot be obtained, and Purchaser does not waive such consent or approval within fifteen (15) days after MDC gives Purchaser written notice that such consent cannot be obtained. (d) Purchaser shall be entitled to a full refund of the Xxxxxxx Money, which shall be its exclusive remedy, and neither party shall have any liability to the other, if the Buyer (i) fails Purchaser elects to perform in terminate this Agreement for failure of any material respect its agreements contained herein required of the Conditions Precedent to be performed by it on Purchaser's obligation to close, or prior pursuant to the Closing Date, paragraph 17(a); or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent MDC elects to terminate this Agreement pursuant to paragraph 17(c); or (iii) MDC elects to terminate this subparagraph;Agreement pursuant paragraph 17(b), provided NWR has complied with its obligations under paragraph 10(b). (ce) By the Buyer in writing, without liability, if the Seller (i) If Purchaser fails to perform purchase the Stock pursuant to this Agreement in any material respect breach of its agreements contained herein required to be performed by them on or prior to the Closing Dateobligations hereunder, or (ii) otherwise materially breaches any of its representationsobligations under this Agreement, warranties or covenants contained hereinif Purchaser notifies MDC after April 1, which 2000 that Purchaser has determined it will not be able to obtain financing as necessary to consummate the sale of the Stock pursuant to this Agreement, then MDC and the Shareholders may terminate this Agreement, and, as their exclusive remedy against Purchaser, shall be entitled either (i) to direct the Escrow Agent, in accordance with the escrow instructions to be given in accordance with paragraph 5(a), to pay the entire balance of the Xxxxxxx Money to MDC in accordance with the directions of the Shareholders or (ii) if the Xxxx Xxxxxxx Money is less than $500,000, to take the action authorized in clause (i) and, in addition, MDC shall be entitled to draw on the irrevocable letter of credit either by presenting an appropriate demand upon the issuer, or directing the Escrow Agent to do so, and in either case is not cured within ten (10) days after in accordance with the Buyer has notified terms of the Seller letter of its intent credit. If Purchaser disputes MDC's entitlement to terminate this Agreement pursuant the Xxxxxxx Money, the Escrow Agent shall continue to this subparagraph; (d) Subject to Section 5.5 hereof, by either hold the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer Xxxxxxx Money and the Seller have used their reasonableirrevocable letter of credit shall remain in effect and available to be drawn upon, good faith efforts to have any such order, writ, injunction until the dispute is resolved by agreement of the parties or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer arbitration as set forth in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof;paragraph 20(n). (f) By either the Seller or the Buyer in writingIf, without liabilityprior to Closing, if for MDC materially breaches any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of its obligations under this Agreement, a "Change of Control" means Purchaser may either (i) waive the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyerbreach and close; or (ii) individuals who, as Purchaser may terminate this Agreement if MDC fails to cure such breach within thirty (30) days after receipt of the date written notice of default from Purchaser. If Purchaser shall elect to terminate this Agreement, constitute Purchaser shall be entitled as its exclusive remedy against MDC and the Board of Directors Shareholders to Purchaser's actual damages, not to exceed $250,000, excluding any lost profits or other consequential damages even if MDC and the Shareholders have been advised of the Buyer cease for any reason to constitute at least a majority possibility of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially owndamages.

Termination Prior to Closing. (a) Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement and the parties will transactions contemplated by this Agreement may not be relieved of the obligation terminated, except prior to consummate the Closing and purchase or sell the Assetsas follows: (ai) By by mutual consent in writing of MedCath Party and St. David’s; (ii) by St. David’s or MedCath Party at any time after July 31, 2010 (the mutual written consent “Drop Dead Date”), if the Closing shall not have occurred by such date; provided, that the right to terminate this Agreement under this Section 11.2(a)(ii) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Buyer Closing to occur by such date; (iii) by MedCath Party if St. David’s shall have breached in any material respect any of the representations, warranties, covenants or other agreements of St. David’s contained in this Agreement, which would give rise to the failure of a condition set forth in Article 8, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice by MedCath Party to St. David’s specifying such breach; (iv) by St. David’s if MedCath Party shall have breached in any material respect any of MedCath Party’s representations, warranties, covenants or other agreements contained in this Agreement, which would give rise to the failure of a condition set forth in Article 9, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice by St. David’s to MedCath Party specifying such breach; (v) by St. David’s or MedCath Party, if any court or any other Governmental Entity shall have issued an order restraining or prohibiting such party from consummating the sale and purchase of the Seller;MedCath Party Assets as provided herein and such order shall have become final and non-appealable so long as the Party seeking to terminate this Agreement has complied with its obligations set forth in Section 6.2 or Section 7.5, as the case may be; or (vi) by St. David’s pursuant to the terms and conditions of Section 11.12. (b) By In the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate event that this Agreement shall be terminated pursuant to this subparagraph; (c) By Section 11.2(a), all further obligations of the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate parties under this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, shall terminate without liability, if there is issued any order, writ, injunction or decree further liability of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated herebyparty to another; provided that the Buyer obligations of the parties contained in this Section 11.2(b) and the Seller have used their reasonable, good faith efforts to have in Article 12 shall survive any such ordertermination. A termination under Section 11.2(a) shall not relieve any party of any liability for a breach of, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of misrepresentation under this Agreement, or be deemed to constitute a "Change waiver of Control" means any available remedy (iincluding specific performance if available) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; such breach or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownmisrepresentation.

Termination Prior to Closing. Notwithstanding anything herein to the foregoingcontrary, the parties will this Agreement may be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By the mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer terminated at any time: (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or Date by mutual consent of Buyer and Seller; (ii) materially breaches on the Closing Date by Buyer if any of the conditions specified in Article VII of this Agreement have not been satisfied and satisfaction of such condition shall not have been waived by Buyer; (iii) on the Closing Date by Seller if any of the conditions specified in Article VIII of this Agreement have not been satisfied and satisfaction of such condition shall not have been waived by Seller; (iv) on the Closing Date by Seller if the LLC has materially breached its representationsobligation under Section 6.18 hereof; provided, warranties or covenants contained hereinhowever, which that Seller shall have provided Buyer with a written notice describing the material breach in either case is not cured within ten reasonable detail and such material breach shall have remained uncured for a period of twenty (1020) days after Buyer’s receipt of such written notice (and if such twenty (20) day cure period extends beyond the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer Closing Date as specified in writingSection 2.1 hereof or October 31, without liability2011, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, and, if applicable, the date specified in Section 6.16(v) hereof, shall be extended to the date the cure period expires); and (v) by Buyer or Seller if the Closing shall not have taken place on or before 11:59 p.m. on October 31, 2011 (ii) materially breaches any which date may be extended by mutual agreement of its representationsBuyer and Seller), warranties or covenants contained herein, which in either case is not cured within ten (10) days after unless the Buyer has notified the Seller of its intent Party desiring to terminate as above provided is in default hereunder. If this Agreement is validly terminated pursuant to this subparagraph; Section 6.16, this Agreement (dother than Section 10.2 and 10.14) Subject to Section 5.5 hereofwill immediately become null and void, by either the Seller and there will be no liability or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding obligation on the Buyer part of the Parties hereto (or the Seller which prohibits any of their respective officers, directors, managers, members partners, employees, agents or materially restrains the Buyer other representatives or the Seller from consummating the transactions contemplated herebyaffiliates); provided provided, however, that the Buyer and the Seller have used their reasonable, good faith efforts if this Agreement is terminated due to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of one of the Parties to this Agreement by then such breaching party shall remain liable to the party attempting to terminate this Agreement; (g) By Seller in writingnon-breaching Party for such breach existing at the time of such termination and such non-breaching Party may seek any remedies, without liabilityincluding damages and attorneys fees, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) against the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect breaching Party with respect to such transaction the individuals breach as are provided in this Agreement or entities who beneficially own voting securities immediately prior to such transaction beneficially ownas are otherwise available at law or in equity.

Termination Prior to Closing. (a) Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated, and the parties will be relieved of transactions contemplated by this Agreement abandoned, upon notice by the obligation terminating Party to consummate the Closing and purchase or sell the Assetsother Parties: (ai) By at any time before the Closing, by mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which by Buyer in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraphaccordance with Section 11.6; (ciii) By at any time before the Closing, by Buyer in writing, without liability, if on the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Dateone hand, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the by Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or other hand, in the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result event of the material breach of this Agreement by the party attempting to terminate this Agreementnon-terminating Party; (giv) By if the satisfaction of any condition to such Party's obligations under this Agreement becomes impossible or impracticable with the use of Commercially Reasonable Efforts and the failure of such condition to be satisfied is not caused by a breach by the terminating Party; (v) at any time after January 3, 2003, by Seller in writing, without liability, upon if the transactions contemplated by this Agreement have not been consummated on or before such date and such failure to consummate is not caused by a "Change of Control" of Buyer (for purposes breach of this AgreementAgreement by Seller or the New Foundation; (vi) at any time after January 3, 2003, by Buyer if the transactions contemplated by this Agreement have not been consummated on or before such date and such failure to consummate is not caused by a "Change breach of Control" means this Agreement by Buyer; (vii) by Buyer if, since August 31, 2002, any event, occurrence or development of a state of circumstances or facts has occurred which has had or reasonably could be expected to have a Material Adverse Effect; (viii) by Seller if, as a result of an Alternative Proposal received by Seller from a Person other than Vanguard or Buyer, the board of directors or trustees of Seller determines in good faith that its fiduciary obligations under applicable non-profit corporation law and other law require that such Alternative Proposal be accepted; provided that (i) the acquisition board of trustees of Seller shall have determined in good faith on the basis of oral or written advice of outside counsel that such action is required by any individual, corporation, company, association, joint venture or its fiduciary obligations under applicable law after considering applicable provisions of state non-profit corporation law and other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately law and after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately all concessions, if any, which have been offered by Buyer pursuant to clause (ii) of this paragraph, and (ii) prior to any such transaction beneficially owntermination as a result of such an Alternative Proposal, Seller shall, and shall cause its financial and legal advisors to, negotiate with Buyer to make such adjustments in the terms and conditions of this Agreement as would enable Buyer to proceed with the transactions contemplated hereby; and provided further that, in connection with the negotiations covered by clause (ii) of this paragraph, the purchase price in the Alternative Proposal shall not be deemed to be in excess of Buyer's Purchase Price under this Agreement until the purchase price in the Alternative Proposal is in excess of the greater of (x) the sum of (A) the Purchase Price under this Agreement and (B) the $10,000,000 termination fee set forth in Section 11.7(a) and (y) the sum of (A) that amount higher than the Purchase Price proposed by Buyer as Buyer's new purchase price for the Assets and (B) the $10,000,000 termination fee set forth in Section 11.7(a); (ix) by Buyer if (A) trading generally shall have been suspended or is materially limited on or by the New York Stock Exchange or the Nasdaq National Market, or (B) any moratorium on commercial banking activities shall have been declared by either Federal or New York State authorities and is continuing, or (C) the United States shall have declared war in accordance with its constitutional processes, or (D) there shall have occurred and be continuing any material outbreak or escalation of hostilities or other national or international calamity or crisis (other than any such hostilities or crises as may exist as of the Effective Date) which has materially adversely impaired the procurement by Buyer of the proposed senior secured B Term Loans which Buyer plans to utilize to fund most of the Cash Portion of the Purchase Price, or (E) there shall have occurred and be continuing any material disruption of or material adverse change in financial, banking or capital market conditions or in the syndication market for senior secured B Term Loans in the United States which has materially adversely impaired the procurement by Buyer of the proposed senior secured B Term Loans which Buyer plans to utilize to fund most of the Cash Portion of the Purchase Price; or (x) at any time by Buyer upon written notice to Seller along with paying to Seller the termination fee described in Section 11.7(a). (b) No termination shall be effective pursuant to Section 11.5(a)(viii) or Section 11.5(a)(x) unless concurrently with such termination, Seller or Buyer, as the case may be, pays the applicable termination fee in full in accordance with the provisions of Section 11.7.

Termination Prior to Closing. Notwithstanding This Agreement and the foregoing, the parties will transactions contemplated by this Agreement may be relieved of the obligation to consummate terminated at any time before the Closing as follows and purchase or sell the Assets: in no other manner: (a) By the by mutual written consent of the in writing by Buyer and the Seller; ; (bc) By the Seller by Buyer, if Buyer is not in writingmaterial breach of its obligations under this Agreement, without liabilityat any time after November 30, 2005, if the Buyer Closing shall not have occurred by such date; (d) by Seller, if Seller is not in material breach of its obligations under this Agreement, at any time after (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to November 30, 2005, if the Closing Date, shall not have occurred by such date notwithstanding the satisfaction of all conditions in Section 7.1 or (ii) February 1, 2006 without regard to whether the conditions in Section 7.1 have been satisfied; (e) by Buyer by written notice to Seller if any one or more conditions to the obligations of Buyer to consummate the transactions contemplated by this Agreement as set forth in Section 7.1 herein have not been satisfied; (f) by Seller by written notice to Buyer if any one or more conditions to the obligations of Seller to consummate the transactions contemplated by this Agreement as set forth in Section 7.2 herein have not been satisfied; (g) by Buyer if any material amount of the Purchased Assets, taken as a whole, are materially damaged, destroyed or condemned; or (h) by Buyer or Seller if (1) the representations and warranties of the other party set forth in Section 4 or 5, as the case may be, shall not be true and correct in all material respects; or (2) the other party materially breaches any material covenant or obligation it was to perform or comply with prior to the Closing. For purposes of clarification, Seller shall be in material breach of its representationsobligations under this Agreement if, warranties after approval of the Sale Order by the Bankruptcy Court, Seller solicits, accepts or covenants contained herein, which in either case is not cured within ten (10) days after negotiates for any offers to purchase any of the Seller has notified the Buyer Purchased Assets. Any termination of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, Section 10.1 shall be without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior liability to the Closing Dateterminating party, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after subject to the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree right of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts non-breaching party to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if pursue damages for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting other party, and in the event this Agreement is terminated, the Deposit and all interest thereon shall be returned to terminate this Agreement; (g) By Seller in writing, Buyer immediately and without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture counterclaim or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownoffset.

Termination Prior to Closing. (a) Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated, and the parties will be relieved of Transaction abandoned, upon notice by the obligation terminating Party to consummate the Closing and purchase or sell the Assetsother Party: (ai) By at any time before the Closing, by mutual written consent of the Buyer and the Seller;Seller without penalty or payment; or (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches at any of its representationstime before the Closing, warranties or covenants contained herein, which in either case is not cured within ten (10) days after by Buyer on the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Dateone hand, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or other hand, in the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result event of the material breach of this Agreement by the party attempting to terminate this Agreement; non- terminating Party, which breach is not cured within thirty (g30) By Seller in writing, without liability, upon a "Change days following receipt of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more notice of the voting securities of alleged breach by the Buyerbreaching Party; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or or (iii) by Seller or Buyer if the Closing shall not have taken place on or before September 30, 2004 (a) as a result of action or threat of action by a Governmental Authority restraining or prohibiting the consummation by of the Buyer Transaction, or (b) if any approval or consent of a reorganizationGovernmental Authority necessary for the consummation of the Transaction under applicable Legal Requirements has not been received; provided that the Parties shall have used their respective commercially reasonable best efforts to cause any such action or order to be vacated, merger lifted or consolidationotherwise disposed of such that the Transaction can be consummated; or (iv) at any time before the Closing, by Buyer in the event Seller suffers a Catastrophic Loss and Seller has not repaired (or exchange agreed in a signed writing reasonably satisfactory to Buyer to repair) the Assets affected to the condition such Assets were in prior to the Catastrophic Loss. (b) If this Agreement is validly terminated pursuant to Section 8.05(a), the Closing Agent shall return the deed(s), if any, to Seller. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(i), (iii) or (iv), this Agreement will be null and void, and there will be no liability on the part of shares any Party (or sale any of their respective members, officers, directors, trustees, employees, agents, consultants or other disposition of representatives). If this Agreement is validly terminated pursuant to Section 8.05(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or substantially all of in equity. (c) In the assets of event Seller suffers a Catastrophic Loss and Buyer does not terminate this Agreement pursuant to Section 8.05(a)(iv), then the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownClosing shall occur as provided for herein.

Termination Prior to Closing. Notwithstanding anything to the foregoingcontrary herein, this Agreement and the parties will transactions contemplated by this Agreement may be relieved of the obligation to consummate terminated at any time before the Closing as follows and purchase or sell the Assetsin no other manner: (a) By the by mutual written consent of the Buyer in writing by Purchaser and the Seller; (b) By the by Purchaser or Seller, upon Seller in writingentering into an agreement providing for an Alternative Transaction, without liability, if the Buyer (i) fails to perform in provided that any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement termination pursuant to this subparagraphSection 10.1(b) shall not become effective until Seller fulfills its obligation to pay any Break-Up Fee and Expense Reimbursement payable pursuant to Section 10.2 (Break-Up Fee; Expense Reimbursement); (c) By Purchaser, if DIP Loan is not approved; (d) by Purchaser: (i) within 5 business days, if Seller has not commenced the Buyer Bankruptcy Case and filed the Sales Procedures Motion within one business day of the date hereof, notwithstanding any subsequent cure; (ii) provided Purchaser is not in writing, without liabilitymaterial breach of its obligations under this Agreement, if the Sale Procedures Order shall not have been entered by the Bankruptcy Court on its docket within 15 days of the Petition Date in a form reasonably acceptable to Purchaser, notwithstanding any subsequent cure; (iii) provided Purchaser is not in material breach of its obligations under this Agreement, if the Sale Order shall not have been entered by the Bankruptcy Court on its docket within 26 days after entry of the Sale Procedures Order by the Bankruptcy Court on its docket in a form reasonably acceptable to Purchaser, notwithstanding any subsequent cure; (iv) provided Purchaser is not in material breach of its obligations under this Agreement, if the Closing shall not have occurred within 11 days following the entry of the Sale Order in a form reasonably acceptable to Purchaser, notwithstanding any subsequent cure; (v) provided Purchaser is not in material breach of its obligations under this Agreement and Purchaser has previously provided Seller (i) fails with notice of any material failure to perform any covenant of Seller contained in any ARTICLE 6, or a material respect its agreements contained herein required violation by Seller of the Sale Procedures Order and Seller has failed, within two days after such notice, to be performed by them on perform such covenant, remedy such material violation, or prior provide reasonably adequate assurance to Purchaser of Seller’s ability to perform such covenant or remedy such material violation; (vi) if Seller’s Bankruptcy Case is dismissed or converted to a case under Chapter 7 of the Bankruptcy Code pursuant to the Closing Date, provisions of the Bankruptcy Code; (vii) if the Bankruptcy Court orders the appointment of a trustee or examiner with expanded powers pursuant to the provisions of the Bankruptcy Code in the Bankruptcy Case; (iiviii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) 5 business days after the Buyer has notified the Seller Purchaser becomes aware of its intent any events, circumstances or conditions that shall have arisen that have had or would reasonably be expected to terminate have a Material Adverse Effect; or (ix) at any time; provided that if Purchaser terminates this Agreement pursuant to this subparagraph; Section 10.1(d)(viii), Seller shall be entitled to the Liquidated Damages in accordance with Section 3.1 (d) Subject Purchaser’s Loan to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agencyLiquidated Damages); (e) By the Buyer in writingby Seller, without liabilitywithin 5 business days, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer is not in writing, without liabilitymaterial breach of its obligations under this Agreement, if for any reason the Closing has shall not have occurred by March 31, 1999 other than as within 11 days after the Sale Order becomes a result of the breach Final Order. Any termination of this Agreement by pursuant to this Section 10.1 shall be without liability to the party attempting to terminate this Agreement; (g) By Seller terminating party, except as provided in writingSection 3.1, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownSection 10.2 and Section 10.3.

Termination Prior to Closing. (a) Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated at any time: (i) by mutual consent of Seller and Buyer; (ii) by Buyer, by written notice to Seller, if any event occurs or condition exists that causes Seller to be unable to satisfy one or more conditions to the parties will be relieved obligations of the obligation Buyer to consummate the Closing and purchase transactions contemplated by this Agreement as set forth in Article 8; (iii) by Seller, by written notice to Buyer, if any event occurs or sell condition exists that causes Buyer to be unable to satisfy one or more conditions to the Assets: obligations of Seller to consummate the transactions contemplated by this Agreement as set forth in Article 7; (aiv) By the mutual written consent of the Buyer and the Seller; (b) By the by Seller in writing, without liabilityor Buyer, if the Closing Date shall not have taken place on or before December 31, 2016 (provided, however, that, Buyer shall have the right, exercisable upon prior written notice to Seller, to extend such date by up to an additional thirty (i30) fails days if all conditions to perform in any material respect its agreements contained herein Closing (other than those that by their terms are to be satisfied by the actions to be taken at the Closing) have been satisfied other than the receipt of approvals from all governmental authorities whose approval is required to be performed by it on complete the transactions herein contemplated, but only if Buyer is diligently pursuing such remaining governmental approvals or prior to the Closing Date, or (ii) materially breaches contesting in good faith any of its representationsthe terms or conditions of such approvals, warranties including, without limitation, pursuing any changes in respect of the conditions imposed on the operation of the Hospital or covenants contained hereinthe related businesses or any other modifications set forth in such approval); provided, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to however, that no party may terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails failure of Closing to perform in any occur by such date resulted from a material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by such party; or (v) by Buyer, pursuant to Section 5.08. (b) If this Agreement is validly terminated pursuant to Section 9.04(a), this Agreement will be null and void, and there will be no liability on the part of any party attempting pursuant to terminate this Agreement;, except that (i) upon termination of this Agreement pursuant to Section 9.04(a), Seller will remain liable to Buyer and Buyer will remain liable to Seller for any breach of their respective obligations existing at the time of such termination, and each party may seek such remedies or damages against the other with respect to any such breach as are provided in this Agreement or as are otherwise available at law or in equity, (ii) the termination fee provisions of Section 9.04(d), the expense allocation provisions of Section 11.21 and the confidentiality provisions of Section 6.11 shall remain in full force and effect and survive any termination of this Agreement. (gc) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes Upon termination of this Agreement, a "Change each party’s existing rights of Control" means access to the books and records of the other party shall terminate, and each party shall promptly return every document furnished it by the other party (or any Affiliate of such other party) in connection with the transactions contemplated hereby, whether obtained before or after execution of this Agreement, and all copies thereof, and will destroy all copies of any analyses, studies, compilations or other documents prepared by it or its representatives to the extent they contain any information with respect to the business of the other parties hereto or their Affiliates, and will cause its representatives to whom such documents were furnished to comply with the foregoing. (d) In the event that this Agreement is terminated by: (i) the acquisition by Buyer for any individual, corporation, company, association, joint venture reason other than pursuant to Section 9.04(a)(ii) or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or Section 9.04(a)(iv); (ii) individuals whoby Seller pursuant to Section 9.04(a)(iii) due to the occurrence of any event or existence of any condition that causes Buyer to be unable to satisfy the conditions to the obligations of Seller to consummate the transactions contemplated by this Agreement as set forth in Sections 7.01, 7.04 or 7.05 (provided, that, with respect to Section 7.05, all closing conditions have been satisfied or waived, other than the conditions that by their terms are to be satisfied by actions to be taken at the Closing, provided that such actions are, as of the date time of such termination, capable of being satisfied at the Closing); or (iii) by Seller pursuant to Section 9.04(a)(iv) and at the time of such termination (x) all the conditions to the obligations of Buyer to consummate the transactions contemplated by this Agreement as set forth in Section 8 have been satisfied (other than the conditions that by their terms are to be satisfied by actions to be taken at the Closing, provided that such actions are, as of the time of such termination, capable of being satisfied at the Closing), and (y) Seller is in compliance in all material respects with the terms of this Agreement, constitute then Buyer shall, within five (5) business days after receipt of written notice of such termination, pay to Seller by wire transfer of immediately available funds to an account designated by Seller a fee equal to One Million Dollars ($1,000,000) (the Board “Termination Fee”). (e) This Section 9.04 shall survive any termination of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownthis Agreement.

Termination Prior to Closing. Notwithstanding anything herein to the foregoingcontrary, the parties will this Agreement may be relieved of the obligation to consummate the Closing and purchase or sell the Assetsterminated: (a) By the mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or by mutual written consent of each Seller and each Buyer; (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Dateby Buyers, if any of the conditions specified in Section 7 of this Agreement have not been satisfied and cannot reasonably be satisfied prior to the Outside Date (unless the failure results primarily from any Buyer or Parent breaching any representation, warranty, or covenant herein) and shall not have been waived by Buyers; (iiiii) materially breaches on or prior to the Closing by Sellers if any of its representations, warranties or covenants contained herein, which the conditions specified in either case is not cured within ten (10) days after the Buyer has notified the Seller Section 8 of its intent to terminate this Agreement have not been satisfied and cannot reasonably be satisfied prior to the Outside Date (unless the failure results primarily from any Seller breaching any representation, warranty, or covenant herein) and shall not have been waived by Sellers; or (iv) by Buyers or Sellers if the Closing Date shall not have taken place on or before August 1, 2004 (which date may be extended by mutual written agreement of Buyers and Sellers) (the "OUTSIDE DATE"). If this Agreement is terminated pursuant to this subparagraph; (d) Subject to Section 5.5 hereof10.1, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer this Agreement shall become void and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result all obligations of the breach of parties under this Agreement will be terminated, except that (x) the obligations of the parties in this Section 10.1 (Termination Prior to Closing) and Sections 12.2 (Sellers' Representative), 12.6 (Choice of Law), 12.7 (Consent to Jurisdiction), 12.8 (Benefits/Assignment), 12.9 (No Brokerage), 12.10 (Cost of Transaction), 12.11 (Confidentiality), 12.12 (Public Announcements), 12.13 (Waiver of Breach; Conditions), 12.14 (Notice), 12.15 (Severability), 12.21 (Waiver of Jury Trial and Waiver of Special, Exemplary, Punitive or Consequential Damages) 12.25 (Enforcement of Agreement), 12.26 (Entire Agreement; Amendment), 12.28 (Certain Transaction Expenses; Transfer or Sales Taxes) and 12.29 (Parent Guarantee) will survive and (y) no such termination shall relieve any breaching party from liability resulting from any willful breach by the that party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated prior to the foregoing, the parties will be relieved Effective Time by providing written notice to each of the obligation to consummate the Closing and purchase or sell the Assetsother parties hereto as follows: (ai) By the by mutual written consent of the Buyer Parent and the SellerGeneral Partner and the Partnership at any time; (bii) By by either Parent or the Seller General Partner and the Partnership if the Merger shall not have been completed by August 31, 2006 (the “Termination Date”); provided that the party seeking to terminate this Agreement pursuant to this Section 9.1(a)(ii) shall not have breached in writing, without liabilityany material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before the Termination Date; (iii) by the Partnership and the General Partner, if the Buyer (i) Parent or MergerCo breaches or fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained hereinin this Agreement, which breach or failure to perform would give rise to the failure of a condition set forth in either case Section 7.1(a) or 7.1(b) and such condition is not cured within ten satisfied (10or is incapable of being satisfied) days after by the Seller has notified Termination Date; provided that neither the Buyer of Partnership nor the General Partner shall have breached in any material respect its intent to terminate obligations under this Agreement pursuant in any manner that shall have proximately contributed to this subparagraphsuch breach or failure to perform by Parent or MergerCo; (civ) By the Buyer in writing, without liabilityby Parent and MergerCo, if the Seller (i) Partnership or the General Partner breaches or fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained hereinin this Agreement, which breach or failure to perform would give rise to the failure of a condition set forth in either case Section 7.2(a) or 7.2(b) and such condition is not cured within ten satisfied (10or is incapable of being satisfied) days after by the Buyer has notified the Seller of Termination Date; provided that neither Parent nor MergerCo shall have breached in any material respect its intent to terminate obligations under this Agreement pursuant in any manner that shall have proximately contributed to this subparagraphsuch breach or failure to perform by the Partnership or the General Partner; (dv) Subject to Section 5.5 hereof, by either the Seller Partnership and General Partner or the Buyer in writing, without liabilityParent, if there is issued shall be any orderLaw that makes consummation of the transactions contemplated herein illegal or otherwise prohibited or if any permanent judgment, writinjunction, injunction order or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller enjoining a party from consummating the transactions contemplated hereby; provided that herein is entered by a Governmental Authority of competent jurisdiction (which the Buyer and the Seller terminating Party shall have used their reasonable, good faith its reasonable best efforts to have any lift) and such orderjudgment, writinjunction, injunction order or decree lifted shall have become final and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agencynon-appealable; (evi) By the Buyer in writing, without liabilityby Parent, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereofa Partnership Triggering Event shall have occurred; (fvii) By either by the Seller Partnership at any time on or prior to the Buyer Partnership obtaining the Partnership Approval if, in writingresponse to a Superior Proposal, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result General Partner shall have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties to the partners of the breach Partnership under applicable Law; provided, however, that it shall be a condition precedent to the termination of this Agreement by the party attempting General Partner and the Partnership pursuant to this Section 9.1(a)(vii) that (i) Parent shall have received a Notice of Adverse Recommendation which shall include written notification of the General Partner’s intention to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or and (ii) individuals whoParent shall not have made, as within three (3) business days of receipt of the date initial Notice of Adverse Recommendation (or within 24 hours of any subsequent Notice of Adverse Recommendation), an irrevocable offer to amend this Agreement, constitute Agreement from Parent to the Board of Directors General Partner that the General Partner determines in good faith is more favorable to the partners of the Buyer cease for any reason to constitute at least a majority of Partnership than the Board of Directors of Superior Proposal; or (viii) by Parent or the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the BuyerPartnership, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownPartnership Approval is not obtained.

Termination Prior to Closing. Notwithstanding (a) Anything herein to the foregoingcontrary notwithstanding, the parties will Alliance Agreements may be relieved of the obligation to consummate terminated at any time on or before the Closing and purchase or sell the AssetsDate as follows: (ai) By the by mutual written consent of Goodyear and SRI; or (ii) by Goodyear if the Buyer and Closing Date has not occurred on or prior to June 30, 2000, due to a failure of any of the Seller;conditions provided for in Article VIII of this Agreement, unless the failure of the Closing Date to occur on or before such date has been caused by, or is the result of, the failure of Goodyear to fulfill any of its obligations under the Agreement; or (iii) by SRI if the Closing Date has not occurred on or prior to June 30, 2000, due to a failure of any of the conditions provided for in Article IX of this Agreement, unless the failure of the Closing Date to occur on or before such date has been caused by, or is the result of, the failure of SRI to fulfill any of it obligations under the Agreement; or (iv) by either Goodyear or SRI, as the case may be, in the event that the other Party hereto shall, contrary to the terms of the Alliance Agreements, willfully fail or willfully refuse to consummate any material part of the Transactions, after affording the defaulting Party a thirty (30) day period after written notice is given to cure such willful failure or willful refusal. (b) By In the Seller in writingevent the Alliance Agreements are terminated pursuant to Article 18.08(a)(iv) hereof, without liability, if the Buyer (i) fails nondefaulting Party shall have the right to perform in any material respect its agreements contained herein required to be performed seek payment of damages incurred by it on or such nondefaulting Party prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph;such termination. (c) By Except as set forth in Article 18.08(b) hereof and except in the Buyer case of termination for expropriation of assets in writingeach of the Trademark Licence Agreements, without liabilityany termination of the Alliance Agreements in accordance with the terms thereof by either Party shall have the effect of causing the Alliance Agreements to thereupon become void and of no further force or effect whatsoever, if and thereupon neither Party will have any rights, duties, liabilities or obligations of 110 any kind or nature whatsoever against the Seller other Party based upon either the Alliance Agreements or the Transactions, except (i) fails claims, if any, that have accrued to perform in a party to any material respect its agreements contained herein required to be performed by them on or of the Alliance Agreements prior to the Closing Date, or date of such termination and (ii) materially breaches any the obligations of its representationseach Party, warranties or covenants contained hereinand their respective Affiliates, which in either case is not cured within ten (10) days after under the Buyer has notified confidentiality provisions of the Seller of its intent Alliance Agreements, to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereofthe extent such confidentiality provisions, by either the Seller or the Buyer in writingtheir terms, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have explicitly survive any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially owntermination.

Termination Prior to Closing. (a) Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement and the parties will transactions contemplated by this Agreement may not be relieved of the obligation terminated, except prior to consummate the Closing and purchase or sell the Assetsas follows: (ai) By the by mutual written consent in writing of the Buyer Seller, Xxxxx and the SellerBuyer; (bii) By by Buyer, on the one hand, or Seller in writingand Xxxxx, without liabilityon the other hand, at any time after July 2, 2012, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31such date; provided, 1999 other than as a result of that the breach of this Agreement by the party attempting right to terminate this AgreementAgreement under this Section 11.1(a)(ii) is not available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by such date; (giii) By by Seller or Xxxxx if Buyer breaches in writingany material respect any of the representations, without liabilitywarranties, upon a "Change of Control" covenants or other agreements of Buyer contained in this Agreement, which would give rise to the failure of a condition set forth in Section 9.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Seller or Xxxxx to Buyer specifying such breach; (iv) by Buyer if Seller or Xxxxx breaches in any material respect any of the representations, warranties, covenants or other agreements of Seller or Xxxxx contained in this Agreement, which would give rise to the failure of a condition set forth in Section 10.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Buyer to Seller and Xxxxx specifying such breach; or (v) by Buyer, Seller or Xxxxx, if any court or any other Governmental Entity issues an order restraining or prohibiting such party from consummating the sale and purchase of the Equity Interest or the Xxxxx Obligations as provided herein and such order becomes final and non-appealable. (b) In the event that this Agreement is terminated prior to Closing pursuant to Section 11.1(a), all further obligations of the parties under this Agreement shall terminate without further liability of any party to another; provided that nothing in this Section 11.1 shall relieve Seller, Xxxxx or Buyer of any liability for purposes an intentional breach of any covenant in this Agreement prior to the date of termination, which liability shall be subject to the limitations set forth in Article 12 of this Agreement, a "Change and the parties shall be entitled to seek the remedy of Control" means (i) the acquisition by specific performance as set forth in Section 12.3. Notwithstanding anything in this Section 11.1, or any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date Section of this Agreement, constitute Agreement to the Board of Directors of the Buyer cease for contrary in no event shall Seller or Xxxxx have any reason liability to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect and Buyer shall have no claim against Seller or Xxxxx, for damages of any type or nature arising from any violation or breach of any representations or warranties made by Seller or Xxxxx to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownBuyer in this Agreement.

Termination Prior to Closing. Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated, and the parties will be relieved of the obligation to consummate transactions contemplated by this Agreement abandoned, at any time before the Closing and purchase or sell the Assetsas follows: (a) By by the mutual written consent of the Buyer Seller and the SellerPurchaser; (b) By the by either Seller in writing, without liability, or Purchaser if the Buyer (i) fails to perform the Sale Motion and Procedures Motion have not been filed within one (1) day following the Effective Date, (ii) the Bid Procedures Order has not been entered in any material respect its agreements contained herein required to be performed the Bankruptcy Case by it on or prior to the Closing Datedate which is twenty (20) days following commencement of the Bankruptcy Case, (iii) the Sale Order has not been entered in the Bankruptcy Case by the date which is fifty-three (53) days following commencement of the Bankruptcy Case, or (iiiv) materially breaches the Closing shall not have occurred by the date which is sixty (60) days following commencement of the Bankruptcy Case; provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur prior to such date; (c) by Purchaser, if (x) any of the representations and warranties of any Seller contained in this Agreement shall fail to be true and correct, or (y) there shall be a breach by any Seller of its representations, warranties covenants or covenants contained herein, which agreements in this Agreement that in either case (i) would result in the failure of a condition set forth in Section 5.1 and (ii) which is not curable or, if curable, is not cured within ten (10) calendar days after the Seller has notified the Buyer of its intent written notice thereof is delivered by Purchaser to Seller; provided, that Purchaser may not terminate this Agreement pursuant to this subparagraph;Section 7.1(c) if Purchaser is in material breach of this Agreement; or (cd) By the Buyer in writing, without liabilityby Seller, if (x) any of the Seller representations and warranties of Purchaser contained in this Agreement shall fail to be true and correct, or (y) there shall be a breach by Purchaser of its covenants or agreements in this Agreement that in either case (i) fails to perform would result in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or failure of a condition set forth in Section 6 and (ii) materially breaches any of its representationswhich is not curable or, warranties or covenants contained hereinif curable, which in either case is not cured within ten (10) calendar days after written notice thereof is delivered by Seller to Purchaser; provided, that Seller may not terminate this Agreement pursuant to this Section 7.1(d) if Seller is in material breach of this Agreement; or (e) by Purchaser (provided that Purchaser is not then in material breach of any provision of this Agreement), if (x) the Buyer Bankruptcy Case is dismissed or converted to Chapter 7 of the Bankruptcy Code or a Chapter 11 trustee is appointed for Seller, (y) the Bid Procedures Order or the Sale Order are entered in forms not acceptable to Purchaser, or (z) Seller has notified not complied with the Bid Procedures Order or the Sale Order; (f) upon the consummation of any Alternative Transaction; (g) [INTENTIONALLY DELETED]; (h) by either Purchaser or Seller in the event that Purchaser and Seller are unable to agree in writing upon the form and substance of all Schedules and Exhibits hereto at or before 5:00 p.m., Eastern Time, on August 17, 2015; and in the event that Purchaser and Seller are not able to so agree the Escrow Holder shall return the Initial Deposit (together with all interest accrued thereon) to Purchaser notwithstanding any other provision of this Agreement. It is acknowledged and agreed that each of Purchaser and Seller may withhold its intent agreement to the Schedules and Exhibits in accordance with this Section 7.1(h) in its sole discretion without providing any reason therefor; (i) by either Purchaser or Seller in the event that the total Cure Costs payable with respect to the assumption and assignment of the Assumed Leases and Assumed Contracts at the Closing exceeds $300,000.00 (the “Overall Cure Cap”); provided, however, (i) any Purchaser Exclusive Costs shall not be taken into account for purposes of determining whether the Overall Cure Cap has been exceeded, and (ii) neither Purchaser nor Seller shall have the right to terminate this Agreement pursuant to this subparagraph;Section 7.1(i) in the event that the other party hereto agrees in writing to bear the amount of such excess itself and proceeds to pay the amount of such excess at Closing; or (dj) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liabilitySeller, if there the condition set forth in Section 6.6 is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, satisfied as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownClosing Date.

Termination Prior to Closing. (a) Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement and the parties will transactions contemplated by this Agreement may not be relieved of the obligation terminated, except prior to consummate the Closing and purchase or sell the Assetsas follows: (ai) By the by mutual written consent in writing of the Buyer Seller and the SellerBuyer; (bii) By by Buyer or Seller (except that Seller may not exercise its rights under this Section as provided in Section 8.6 hereof) at any time after May 31, 2011 (the Seller in writing, without liability“Outside Date”), if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31such date; provided, 1999 other than as a result of that the breach of this Agreement by the party attempting right to terminate this AgreementAgreement under this Section 11.2(a)(ii) is not available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by such date; (giii) By by Seller if Buyer breaches in writingany material respect any of the representations, without liabilitywarranties, upon a "Change of Control" covenants or other agreements of Buyer contained in this Agreement, which would give rise to the failure of a condition set forth in Section 8.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Seller to Buyer specifying such breach; (iv) by Buyer if Seller breaches in any material respect any of the representations, warranties, covenants or other agreements of Seller contained in this Agreement, which would give rise to the failure of a condition set forth in Section 9.1 or Section 9.4, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Buyer to Seller specifying such breach; (v) by Buyer or Seller, if any court or any other Governmental Entity issues an order restraining or prohibiting such party from consummating the sale and purchase of the Purchased Assets as provided herein and such order becomes final and non-appealable, subject to compliance with Sections 6.4 and 7.8; or (vi) by Buyer pursuant to the terms and conditions of Section 11.8. (b) In the event that this Agreement is terminated pursuant to Section 11.2(a), all further obligations of the parties under this Agreement shall terminate without further liability of any party to another; provided that nothing in this Section 11.2 shall relieve Seller or Buyer of any liability for purposes fraud or an intentional breach of any covenant in this Agreement prior to the date of termination, which liability shall be subject to the limitations set forth in Article 12.2(b) of this Agreement, a "Change and the parties shall be entitled to seek and recover damages for such matters and to seek the remedy of Control" means (i) specific performance as set forth in Section 12.3. In the acquisition by event that this Agreement is terminated pursuant to Section 11.2(a), notwithstanding anything in this Section 11.2, or any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date Section of this Agreement, constitute to the Board of Directors of the Buyer cease for contrary, in no event shall Seller have any reason liability to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect and Buyer shall have no claim against Seller, for damages of any type or nature arising from any violation or breach of any representations or warranties made by Seller to such transaction the individuals or entities who beneficially own voting securities immediately prior Buyer in Article 5 of this Agreement, other than those relating to such transaction beneficially ownfraud.

Termination Prior to Closing. (a) Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated and the parties will transactions contemplated hereby may be relieved of the obligation abandoned at any time prior to consummate the Closing and purchase or sell the Assetsin no other manner: (ai) By by the mutual written consent of the Buyer Xxxxx and the SellerXxxxxx; (bii) By the Seller in writing, without liabilityby Buyer, if the Buyer (i) Seller breaches or fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties warranties, agreements, covenants or other obligations contained in this Agreement and such breach or failure to perform would, if the Closing otherwise were to occur on the date of written notice of such breach or failure to perform, give rise to the failure of a condition set forth in Section 6.1 that is incapable of being cured by the Closing Date; (iii) by Seller, if Buyer breaches or fails to perform in any respect any of its representations, warranties, agreements, covenants or other obligations contained hereinin this Agreement and such breach or failure to perform would, which if the Closing otherwise were to occur on the date of written notice of such breach or failure to perform, give rise to the failure of a condition set forth in either Section 7.1 that is incapable of being cured by the Closing Date; (iv) by Buyer after the Termination Date, if the Closing shall not have occurred by such date, provided that the right to terminate this Agreement under this Section 8.1(a)(iv) shall not be available to Buyer if the breach of or inaccuracy in any representation or warranty or breach of or failure to perform any covenant, agreement or other obligation of Buyer set forth in this Agreement has been the primary cause of or resulted in the failure of the Closing to occur on or prior to such date; or (v) by Xxxxx or Seller immediately upon the occurrence of any of the following events: 1. the Bankruptcy Court approves any closing of an Alternative Transaction; 2. the dismissal or conversion of the Bankruptcy Case to a case under Chapter 7 of the Bankruptcy Code or the granting of relief from the automatic stay with respect to any of the Purchased Assets; or 3. the Sale Order is not cured entered within ten five (105) days after the Seller has notified the Buyer of its intent Sale Hearing. (vi) The Party seeking to terminate this Agreement pursuant to this subparagraph;Section 8.1(a) (other than Section 8.1(a)(i)) shall give prompt written notice of such termination to the other Party. Buyer shall be permitted to provide any notice under this Agreement in accordance with the terms of this Agreement, notwithstanding the existence of the Bankruptcy Case or the automatic stay. (cb) By In the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree event of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach termination of this Agreement by either Buyer or Seller as provided in Section 8.1(a), this Agreement shall forthwith become void, and there shall be no liability on the party attempting part of any Party or any of its or their Affiliates to terminate any other Person resulting from, arising out of, relating to, or in connection with this Agreement;Agreement or any other document related to the transactions contemplated herein except that: (gi) By Seller all rights and obligations of the Parties set forth in writingthis Section 8.1(b) and ARTICLE I, without liability, upon a "Change of Control" of Buyer ARTICLE IX and the Sale Order (for purposes if entered) shall survive termination of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated at any time before the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the AssetsClosing: (a) By by the mutual written consent of the Buyer and the SellerParties; (b) By by the Seller in writing, without liability, if Licensee by written notice to the Buyer Licensor if: (i) fails the Licensee is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by the Licensor under this Agreement that would give rise to the failure of any of the conditions specified in Section Error! Reference source not found. and such breach, inaccuracy or failure has not been cured by the Licensor, as the case may be, within five (5) calendar days of the Licensor, as the case may be, receipt of written notice of such breach from the Licensee; or (ii) any material respect its agreements contained herein required to be performed of the conditions set forth in Section 7 were not, or if it becomes apparent that any of such conditions will not be, fulfilled by it on or prior to the Closing Date, unless such failure shall be due to the failure of the Licensee to perform or (ii) materially breaches comply with any of its representationsthe covenants, warranties agreements or covenants contained herein, which in either case is not cured within ten (10) days after conditions hereof to be performed or complied with by it before the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraphClosing; (c) By by the Buyer in writing, without liability, if Licensor by written notice to the Seller Licensee if: (i) fails the Licensor is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by the Licensee under this Agreement that would give rise to the failure of any of the conditions specified in Section Error! Reference source not found. and such breach, inaccuracy or failure has not been cured by the Licensee within five (5) calendar days of the Licensee’s receipt of written notice of such breach from the Licensor; or (ii) any material respect its agreements contained herein required to be performed of the conditions set forth in Section 7.2 were not, or if it becomes apparent that any of such conditions will not be, fulfilled by them on or prior to the Closing Date, unless such failure shall be due to the failure of the Licensor to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it before the Closing; or (d) by the Licensee if, prior to Closing, (i) there shall be any Applicable Laws that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited or (ii) materially breaches any of its representations, warranties Governmental Authority shall have released a Governmental Order restraining or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating enjoining the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to and such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownGovernmental Order shall have become final and non-appealable.

Termination Prior to Closing. (a) Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement and the parties will transactions contemplated by this Agreement may not be relieved of the obligation terminated, except prior to consummate the Closing and purchase or sell the Assetsas follows: (ai) By the by mutual written consent in writing of the Buyer Seller, Xxxxx and the SellerBuyer; (bii) By by Buyer, on the one hand, or Seller in writingand Xxxxx, without liabilityon the other hand, at any time after September 30, 2011 (the “Outside Date”), if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31such date; provided, 1999 other than as a result of that the breach of this Agreement by the party attempting right to terminate this AgreementAgreement under this Section 11.1(a)(ii) is not available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by such date; (giii) By by Seller or Xxxxx if Buyer breaches in writingany material respect any of the representations, without liabilitywarranties, upon a "Change of Control" covenants or other agreements of Buyer contained in this Agreement, which would give rise to the failure of a condition set forth in Section 9.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Seller or Xxxxx to Buyer specifying such breach; (iv) by Buyer if Seller or Xxxxx breaches in any material respect any of the representations, warranties, covenants or other agreements of Seller or Xxxxx contained in this Agreement, which would give rise to the failure of a condition set forth in Section 10.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Buyer to Seller and Xxxxx specifying such breach; or (v) by Buyer, Seller or Xxxxx, if any court or any other Governmental Entity issues an order restraining or prohibiting such party from consummating the sale and purchase of the Equity Interest or the Xxxxx Obligations as provided herein and such order becomes final and non-appealable. (b) In the event that this Agreement is terminated pursuant to Section 11.1(a), all further obligations of the parties under this Agreement shall terminate without further liability of any party to another; provided that nothing in this Section 11.1 shall relieve Seller, Xxxxx or Buyer of any liability for purposes an intentional breach of any covenant in this Agreement prior to the date of termination, which liability shall be subject to the limitations set forth in Article 13 of this Agreement, a "Change and the parties shall be entitled to seek the remedy of Control" means (i) the acquisition by specific performance as set forth in Section 12.1. Notwithstanding anything in this Section 11.1, or any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date Section of this Agreement, constitute to the Board contrary, except as expressly provided in Article 13, in no event shall Seller or Xxxxx have any liability to Buyer, and Buyer shall have no claim against Seller or Xxxxx, for damages of Directors any type or nature arising from any violation or breach of the Buyer cease for any reason representations or warranties made by Seller or Xxxxx to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyerby Buyer to Seller and Xxxxx, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownin this Agreement.

Termination Prior to Closing. Notwithstanding the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By Notwithstanding anything herein to the mutual written consent of the Buyer and the Seller; (b) By the Seller in writingcontrary, without liability, if the Buyer this Agreement may be terminated at any time: (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or Date by mutual consent of Seller and Buyer; (ii) materially breaches by Buyer if any of the conditions in Section 7 have not been satisfied as of the Closing Date or if satisfaction of any condition in Section 7 is or becomes impossible and Buyer has not waived such condition in writing on or before the Closing Date (provided that the failure to satisfy the applicable condition or conditions has occurred by reason other than (a) through the failure of Buyer to comply with its obligations under this Agreement or (b) Seller's failure to provide its closing deliveries on the Closing Date is a result of Buyer not being ready, willing and able to close the transaction on the Closing Date); (iii) by Seller if any of the conditions in Section 8 have not been satisfied as of the Closing Date or if satisfaction of any such condition in Section 8 is or becomes impossible and Seller has not waived such condition in writing on or before the Closing Date (provided that the failure to satisfy the applicable condition or conditions has occurred by reason other than (a) through the failure of Seller to comply with its obligations under this Agreement or (b) Buyer's failure to provide its closing deliveries on the Closing Date is a result of Seller not being ready, willing and able to close the transaction on the Closing Date); (iv) by Buyer or Seller if the Closing Date shall not have taken place by August 31, 2004 (which date may be extended to September 30, 2004 by mutual agreement of Buyer and Seller if they believe that the Closing is imminent); or (v) by either Seller or Buyer pursuant to Section 12.1. (b) If this Agreement is terminated pursuant to Section 10.2(a), (a) all further obligations of the parties under this Agreement shall terminate, except that the obligations in Sections 12.6, 12.9, 12.10, and 12.11 shall survive, (b) each party shall pay the costs and expenses incurred by it in connection with this Agreement, except as provided in Section 12.9, and (c) nothing shall prevent either party hereto from pursing any of its representations, warranties legal rights or covenants contained herein, which in either case is not cured within ten (10) days after remedies that may be granted to any such party by law against the Seller has notified the Buyer of its intent to terminate this Agreement pursuant other party to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own.

Termination Prior to Closing. (a) Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement and the parties will transactions contemplated by this Agreement may not be relieved of the obligation terminated, except prior to consummate the Closing and purchase or sell the Assetsas follows: (ai) By by mutual consent in writing of Seller and Buyer; (ii) by Buyer or Seller at any time after November 30, 2011 (the mutual written consent “Drop Dead Date”), if any one or more of the conditions precedent to Buyer’s or Seller’s obligations to close as set forth in Article 9 or Article 8, respectively, has not been satisfied (or waived in writing) by such Drop Dead Date, or if the Closing has not otherwise occurred by such Drop Dead Date; provided, that the right to terminate this Agreement under this Section 11.2(a)(ii) is not available to any party whose failure to act or to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of such closing condition to be satisfied or the failure of the Closing to occur by such date; (iii) by Seller if Buyer (A) breaches in any respect any representation or warranty made by Buyer in this Agreement that is qualified by any type of materiality standard, (B) breaches in any material respect any representation or warranty by Buyer in this Agreement that is not qualified by any type of materiality standard or (C) breaches in any material respect any covenant or agreement made by Buyer in this Agreement, and any such breach cannot be or has not been cured to Seller’s reasonable satisfaction at least two (2) days prior to Closing after the giving of written notice by Seller to Buyer specifying such breach, which notice shall be promptly provided by Seller to Buyer as soon as Seller becomes aware of such breach; (iv) by Buyer if Seller (A) breaches in any respect any representation or warranty made by Seller in this Agreement that is qualified by any type of materiality standard, (B) breaches in any material respect any representation or warranty by Seller in this Agreement that is not qualified by any type of materiality standard or (C) breaches in any material respect any covenant or agreement made by Seller in this Agreement, and any such breach cannot be or has not been cured to Buyer’s reasonable satisfaction at least two (2) days prior to Closing after the giving of written notice by Buyer to Seller specifying such breach, which notice shall be promptly provided by Buyer to Seller as soon as Buyer becomes aware of such breach; (v) by Buyer or Seller, if any court or any other Governmental Entity issues an order restraining or prohibiting such party from consummating the sale and purchase of the Purchased Assets as provided herein; (vi) by Buyer pursuant to the terms and conditions of Section 11.8; (vii) by Buyer pursuant to the terms and conditions of Section 11.12(b)(ii); or (viii) by Buyer pursuant to the terms and conditions of Section 14.20. (b) By In the Seller in writingevent that this Agreement is terminated pursuant to Section 11.2(a) and subject to the terms of subsections (c) and (d) below and as otherwise set forth herein, all further obligations of the parties under this Agreement shall terminate without liability, if the Buyer further liability of any party to another; provided that (i) fails to perform nothing in this Section 11.2 shall relieve Seller or Buyer of any material respect its agreements contained herein required to be performed by it on or liability for an intentional breach of any covenant in this Agreement prior to the Closing Datedate of termination, or which liability shall be subject to the limitations set forth in Article 12 of this Agreement, (ii) materially breaches the parties shall be entitled to seek the remedy of specific performance as set forth in Section 12.3 and (iii) in the event that Seller violates the terms of Section 7.6 hereof by completing the lease or sale of the Purchased Assets or any material portion of the ownership interest in any entity owning any of its representationsthe Purchased Assets with any third party (a “7.6 Prohibited Transaction”), then Buyer may seek damages from Seller arising from such 7.6 Prohibited Violation subject to the limitations in Article 12 hereof. Notwithstanding anything in this Section 11.2, or any other Section of this Agreement, to the contrary, in no event shall Seller have any liability to Buyer, and Buyer shall have no claim against Seller, for damages of any type or nature arising from any violation or breach of any representations or warranties or covenants contained herein, which made by Seller to Buyer in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph;Agreement. (c) By In the event that this Agreement is terminated by Seller pursuant to Section 11.2(a)(iii), or Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed close the transactions contemplated by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement as and when required pursuant to this subparagraph;Agreement after Seller has satisfied all of the closing conditions set forth in Article 9 (and after any applicable notice and cure period(s)), then in addition to its right to seek specific performance as set forth in Section 12.3, Seller may elect to require that the Deposit held by Escrow Agent in the Escrow Account be paid to Seller as liquidated damages arising from Buyer’s breach of its obligations under this Agreement, in which event Buyer shall be obligated to provide written instructions to the Escrow Agent to pay all amounts in the Escrow Account to Seller. The parties agree that such amount is a reasonable estimate of damages which would be incurred by Seller arising from such breach by Buyer. (d) Subject In the event that this Agreement is terminated pursuant to Sections 11.2(a)(i), (ii), (iv), (v), (vi), (vii) or (viii) then Buyer shall have to the right to seek specific performance as set forth in Section 5.5 hereof, by either the Seller 12.3 or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided may elect to require that the Buyer and Deposit held by Escrow Agent in the Seller have used their reasonable, good faith efforts Escrow Account by be paid to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect in which event Seller shall be obligated to such transaction provide written instructions to the individuals or entities who beneficially own voting securities immediately prior Escrow Agent to such transaction beneficially ownpay all amounts in the Escrow Account to Buyer.

Termination Prior to Closing. Notwithstanding Subject to Section 6.2, this Agreement may be terminated and the foregoing, Transaction may be abandoned at any time prior to the parties will be relieved of the obligation to consummate the Closing and purchase or sell the AssetsClosing: (a) By the by mutual written consent of each of the Buyer Buyers and the SellerCompany; (b) By by either the Seller Company or any Buyer, if a Governmental Authority shall have issued or enacted any Legal Requirement or taken any other action (including the failure to have taken an action), in writingany case having the effect of permanently restraining, without liabilityenjoining or otherwise prohibiting or making illegal the Closing or any transactions contemplated hereunder, which Legal Requirement is final and nonappealable, as applicable; (c) by either the Company or either Buyer, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it Closing shall not have occurred on or prior to 5:00 p.m. Eastern Time on the date that is five (5) Business Days following the date that is the fifteen (15) month anniversary of the date hereof; (d) with respect to the obligations of the Company to the Buyers, by the Company, upon a material breach of any representation, warranty, covenant or agreement set forth in this Agreement by such Buyer or its respective permitted assignee hereunder (other than a Buyer Default) determined by a final and non-appealable judgment or decree of any court of competent jurisdiction, such that the conditions set forth in Section 5.3(a)(i) or Section 5.3(a)(ii) would not be satisfied as of the Closing; provided that if such breach is curable prior to the Closing Datethrough the exercise of Reasonable Efforts, or then the Company may not terminate this Agreement under this Section 6.1(d) prior to fifteen (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (1015) days after following the Seller has notified receipt of written notice from the Company to such Buyer of its intent to such breach (it being understood that the Company may not terminate this Agreement pursuant to this subparagraphSection 6.1(d) if (i) such breach by the Buyer is cured such that such conditions would then be satisfied as of the Closing or (ii) the Company is in breach of this Agreement such that the conditions set forth in Section 5.2(a)(i), Section 5.2(a)(ii) or Section 5.2(a)(iii) would not be satisfied as of the Closing); (ce) By with respect to the obligations of the Company to the Buyers, by the Company, upon any Buyer failing to pay, and failing to cause to be paid, to the Company that portion of the Purchase Price payable by such Buyer, as provided in Section 2.2(a), within five (5) Business Days of such amount becoming due and payable at the Closing hereunder for the Purchased Preferred Units purchased by such Buyer in writingaccordance with the terms of this Agreement and for so long as such failure to pay is ongoing (a “Buyer Default”); (f) with respect to the obligations of the Buyers to the Company, without liabilityby any Buyer, upon a material breach of any representation, warranty, covenant or agreement set forth in this Agreement by the Company determined by a final and non-appealable judgment or decree of any court of competent jurisdiction, such that the conditions set forth in Section 5.2(a)(i), Section 5.2(a)(ii) or Section 5.2(a)(iii) would not be satisfied as of the Closing; provided that if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or such breach is curable prior to the Closing Datethrough the exercise of Reasonable Efforts, or then such Buyer may not terminate this Agreement under this Section 6.1(f) prior to fifteen (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (1015) days after following the receipt of written notice from such Buyer to the Company of such breach (it being understood that the Buyer has notified the Seller of its intent to may not terminate this Agreement pursuant to this subparagraph; (dSection 6.1(f) Subject to Section 5.5 hereof, if such breach by either the Seller or the Buyer in writing, without liability, if there Company is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided cured such that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than conditions would then be satisfied as a result of the breach of this Agreement by the party attempting to terminate this Agreement;Closing); or (g) By Seller by either Buyer or the Company in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of event that the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownMerger Agreement is validly terminated in accordance with its terms.

Termination Prior to Closing. Notwithstanding anything herein to the foregoingcontrary, this Agreement may be terminated, and the parties will be relieved of the obligation to consummate transactions contemplated by this Agreement abandoned, at any time before the Closing and purchase or sell the Assets: as follows: (a) By by the mutual written consent of the Buyer Seller and the Seller; Purchaser; (b) By the by either Seller in writing, without liability, or Purchaser if the Buyer (i) fails to perform the Sale Motion and Procedures Motion have not been filed within one (1) day following the Effective Date, (ii) the Bid Procedures Order has not been entered in any material respect its agreements contained herein required to be performed the Bankruptcy Case by it on or prior to the Closing Datedate which is twenty (20) days following commencement of the Bankruptcy Case, (iii) the Sale Order has not been entered in the Bankruptcy Case by the date which is fifty-three (53) days following commencement of the Bankruptcy Case, or (iiiv) materially breaches the Closing shall not have occurred by the date which is sixty (60) days following commencement of the Bankruptcy Case; provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur prior to such date; (c) by Purchaser, if (x) any of the representations and warranties of any Seller contained in this Agreement shall fail to be true and correct, or (y) there shall be a breach by any Seller of its representations, warranties covenants or covenants contained herein, which agreements in this Agreement that in either case (i) would result in the failure of a condition set forth in Section 5.1 and (ii) which is 38 not curable or, if curable, is not cured within ten (10) calendar days after the Seller has notified the Buyer of its intent written notice thereof is delivered by Purchaser to Seller; provided, that Purchaser may not terminate this Agreement pursuant to this subparagraph; Section 7.1(c) if Purchaser is in material breach of this Agreement; or (cd) By the Buyer in writing, without liabilityby Seller, if (x) any of the Seller representations and warranties of Purchaser contained in this Agreement shall fail to be true and correct, or (y) there shall be a breach by Purchaser of its covenants or agreements in this Agreement that in either case (i) fails to perform would result in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or failure of a condition set forth in Section 6 and (ii) materially breaches any of its representationswhich is not curable or, warranties or covenants contained hereinif curable, which in either case is not cured within ten (10) calendar days after written notice thereof is delivered by Seller to Purchaser; provided, that Seller may not terminate this Agreement pursuant to this Section 7.1(d) if Seller is in material breach of this Agreement; or (e) by Purchaser (provided that Purchaser is not then in material breach of any provision of this Agreement), if (x) the Buyer Bankruptcy Case is dismissed or converted to Chapter 7 of the Bankruptcy Code or a Chapter 11 trustee is appointed for Seller, (y) the Bid Procedures Order or the Sale Order are entered in forms not acceptable to Purchaser, or (z) Seller has notified not complied with the Bid Procedures Order or the Sale Order; (f) upon the consummation of any Alternative Transaction; (g) [INTENTIONALLY DELETED]; (h) by either Purchaser or Seller in the event that Purchaser and Seller are unable to agree in writing upon the form and substance of all Schedules and Exhibits hereto at or before 5:00 p.m., Eastern Time, on August 17, 2015; and in the event that Purchaser and Seller are not able to so agree the Escrow Holder shall return the Initial Deposit (together with all interest accrued thereon) to Purchaser notwithstanding any other provision of this Agreement. It is acknowledged and agreed that each of Purchaser and Seller may withhold its intent agreement to the Schedules and Exhibits in accordance with this Section 7.1(h) in its sole discretion without providing any reason therefor; (i) by either Purchaser or Seller in the event that the total Cure Costs payable with respect to the assumption and assignment of the Assumed Leases and Assumed Contracts at the Closing exceeds $300,000.00 (the “Overall Cure Cap”); provided, however, (i) any Purchaser Exclusive Costs shall not be taken into account for purposes of determining whether the Overall Cure Cap has been exceeded, and (ii) neither Purchaser nor Seller shall have the right to terminate this Agreement pursuant to this subparagraph; (dSection 7.1(i) Subject to Section 5.5 hereof, by either in the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided event that the Buyer other party hereto agrees in writing to bear the amount of such excess itself and proceeds to pay the Seller have used their reasonable, good faith efforts to have any amount of such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyerexcess at Closing; or (iij) individuals whoby Seller, if the condition set forth in Section 6.6 is not satisfied as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownClosing Date.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated at any time prior to the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the AssetsClosing: (a) By the by mutual written consent agreement of the Buyer Seller and the SellerBuyer; (b) By the by either Seller in writing, without liabilityor Buyer, if the Buyer Closing shall not have been consummated (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to other than through the Closing Date, or (ii) materially breaches any failure of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent applicable party seeking to terminate this Agreement pursuant to this subparagraphSection 11.01(b) to fully and promptly comply with its obligations hereunder or under any Ancillary Agreement) on or before March 31, 2006; (c) By by either Seller or Buyer, if consummation of the transactions contemplated to be consummated at the Closing would violate any nonappealable final Order of any Governmental Entity having competent jurisdiction; (d) by Seller, if (i) the DOI has objected to the treatment as admitted assets under SSAP 86 of certain hedging arrangements to be entered into by Buyer in writingand its Affiliates and (ii) as a result, without liabilitySeller would be required to contribute capital to the Company to cause the Statutory Adjusted Capital to equal or exceed the Target Closing Capital Amount; provided that Seller may not terminate this Agreement pursuant to this Section 11.01(d) if Buyer agrees to contribute to the Company any such required capital specified by the DOI; (e) by Seller, if the Seller sum of the VA Purchase Price Adjustment and the VUL Purchase Price Adjustment is, in Seller’s good faith judgment, reasonably likely (iincluding based on its estimate delivered pursuant to Section 2.02(b)) fails to perform result in any material respect its agreements contained herein required a reduction of the purchase price expected to be performed received by them on Seller at Closing by an amount greater than $50,000,000; provided that Seller may not terminate this Agreement pursuant to this Section 11.01(e) if Buyer agrees to pay to Seller in cash the amount of any purchase price reduction in excess of $50,000,000; or (f) by either Buyer or prior Seller, if a breach of any provision of this Agreement has been committed by the other party so that a mutual condition to Closing or a condition to Closing for the Closing Date, or (ii) materially breaches any benefit of its representations, warranties or covenants contained herein, which in either case the non-breaching party is not cured within ten (10) days after the Buyer has notified the Seller satisfied and such breach is incapable of its intent cure. The party desiring to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof11.01(b), by either the Seller or the Buyer in writing11.01(c), without liability11.01(d), if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation11.01(e), or exchange 11.01(f), shall give notice of shares or sale or such termination to the other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownparty.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated at any time prior to the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the AssetsClosing: (a) By the by mutual written consent of all of the Buyer and parties hereto at any time prior to the Seller;Closing; or (b) By the Seller by Parent if it is not in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any breach of its representationsobligations under this Agreement and there has been a material breach of any representation, warranties warranty, covenant or covenants agreement contained hereinin this Agreement on the part of any Company, which in either case is the Company Shareholders or the Trust and such breach has not been cured within ten (10) calendar days after written notice to such Company, the Seller has notified Company Shareholders and the Buyer of Trust (provided that, no cure period shall be required for a breach which by its intent to terminate this Agreement pursuant to this subparagraphnature cannot be cured); (c) By by the Buyer Companies, the Company Shareholders and the Trust if they are not in writingmaterial breach of their obligations under this Agreement and there has been a material breach of any representation, without liabilitywarranty, if covenant or agreement contained in this Agreement on the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on part of Parent, Merger Sub or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is Purchase Sub and such breach has not been cured within ten (10) calendar days after the Buyer has notified the Seller of written notice to Parent (provided that, no cure period shall be required for a breach which by its intent to terminate this Agreement pursuant to this subparagraphnature cannot be cured); (d) Subject to Section 5.5 hereofby the Parent, by either the Seller or the Buyer in writing, without liability, Merger Sub and Purchase Sub if there is shall be any action taken, or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Merger by any orderGovernmental Authority, writwhich would: (i) prohibit Parent's, injunction Merger Sub's, Purchase Sub's or decree any of the Companies' ownership or operation of all or a portion of the business of any court of the Companies or governmental (ii) compel Parent, Merger Sub, Purchase Sub or regulatory agency binding on any of the Buyer Companies to dispose of or hold separate all or a portion of the Seller which prohibits business or materially restrains assets of any of the Buyer Companies or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than Parent as a result of the breach Merger, the MacLxxx Xxxchases or the South Gate Purchase; or (e) if the Closing shall not have occurred by January 31, 1997. (f) In the event of termination of this Agreement by pursuant to Section 14.1, this Agreement and the Plan of Merger shall forthwith become void; provided, however, that nothing herein shall relieve any party attempting from liability for the breach of any of its representations, warranties, covenants or agreements set forth in this Agreement prior to terminate this Agreement; (g) By Seller in writingits termination; provided further that, without liability, upon a "Change the provisions of Control" Sections 7.7 and 7.8 of Buyer (for purposes Article VII of this Agreement, a "Change of Control" means (i) the acquisition by Agreement shall remain in full force and effect and survive any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially owntermination.

Termination Prior to Closing. (a) Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement and the parties will transactions contemplated by this Agreement may not be relieved of the obligation terminated, except prior to consummate the Closing and purchase or sell the Assetsas follows: (ai) By the by mutual written consent in writing of the Buyer Seller and the SellerBuyer; (bii) By by Buyer or Seller at any time after November 1, 2010 (the Seller in writing, without liability“Drop Dead Date”), if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31such date; provided, 1999 other than as a result of that the breach of this Agreement by the party attempting right to terminate this AgreementAgreement under this Section 11.2(a)(ii) is not available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by such date; (giii) By by Seller if Buyer breaches in writingany material respect any of the representations, without liabilitywarranties, upon a "Change of Control" covenants or other agreements of Buyer contained in this Agreement, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice by Seller to Buyer specifying such breach; (iv) by Buyer if Seller breaches in any material respect any of Seller’s representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice by Buyer to Seller specifying such breach; (v) by Buyer or Seller, if any court or any other Governmental Entity issues an order restraining or prohibiting such party from consummating the sale and purchase of the Purchased Assets as provided herein and such order becomes final and non-appealable; (vi) by Buyer pursuant to the terms and conditions of Section 11.8; or (vii) by Buyer pursuant to the terms and conditions of Section 13.20. (b) In the event that this Agreement is terminated pursuant to Section 11.2(a), all further obligations of the parties under this Agreement shall terminate without further liability of any party to another; provided that (i) nothing in this Section 11.2 shall relieve Seller or Buyer of any liability for purposes an intentional breach of any covenant in this Agreement prior to the date of termination, which liability shall be subject to the limitations set forth in Article 12.2 of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, the parties shall be entitled to seek the remedy of specific performance as set forth in Section 12.3 and (iii) in the event that Seller violates the terms of Section 7.6 hereof by completing the lease or sale its assets (or any material portion thereof) or any material portion of the date ownership interest in any entity owning any of the Purchased Assets with any third party (a “7.6 Prohibited Transaction”), then Buyer may seek damages from Seller arising from such 7.6 Prohibited Violation subject to the limitations in Section 12.2 hereof. Notwithstanding anything in this Section 11.2, or any other Section of this Agreement, constitute to the Board of Directors of the Buyer cease for contrary, in no event shall Seller have any reason liability to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect and Buyer shall have no claim against Seller, for damages of any type or nature arising from any violation or breach of any representations or warranties made by Seller to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownBuyer in this Agreement.

Termination Prior to Closing. Notwithstanding the foregoingany contrary provisions of this Agreement, the parties will be relieved respective obligations of the obligation parties hereto to consummate the Closing may be terminated and purchase abandoned at any time at or sell before the AssetsClosing only as follows: (a) By and at the option of Buyer if the Closing shall not have occurred by June 30, 2008; provided that Buyer shall not have breached in any material respect its obligations under this Agreement in any manner that shall have been the proximate cause of, or resulted in, the failure to consummate the Closing. (b) By and at the option of Seller if the Closing shall not have occurred by June 30, 2008, provided that Seller shall not have breached in any material respect its obligations under this Agreement in any manner that shall have been the proximate cause of, or resulted in, the failure to consummate the Closing. (c) At any time, without liability of any party to the others, upon the mutual written consent of the Buyer and Seller. (d) By either Buyer or Seller in the event the Seller Stockholder Approval of the Acquisition is not obtained at the Seller;’s Stockholder Meeting at which such matters were presented to such stockholders for approval and voted upon; provided, however, that the right to terminate this Agreement under this Section 10.1(d) shall not be available to Seller where the failure to obtain the Seller Stockholder Approval shall have been caused by the action or failure to act by Seller and such action or failure to act constitutes a material breach by Seller of this Agreement; or (be) By Buyer in the Seller in writing, without liability, if the Buyer event that (i) fails the Board of Directors of Seller shall have failed to perform include in any material respect its agreements contained herein required to be performed by it on the proxy statement the Seller Recommendation, without modification or prior to the Closing Datequalification, or (ii) materially breaches any the Board of its representations, warranties or covenants contained herein, which Directors of Seller shall have made a change in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated herebyRecommendation; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof;or (f) By either the Seller or the Buyer in writing, without liability(provided that Seller has complied with Sections 5.1 and 5.6 hereof), if for any reason (i) the Closing has not occurred by March 31, 1999 other than as Board of Directors of Seller accepts a result Superior Offer; and (ii) Seller shall have rendered to Buyer payment in full of the breach amount specified in Section 11.5 concurrently with delivery of its final notice of termination pursuant to this Agreement by the party attempting to terminate this Agreement;Section 10.1(f); or (g) By either Buyer or Seller (provided that the terminating Party is not then in writingmaterial breach of any representation, without liabilitywarranty, upon a "Change of Control" of Buyer (for purposes of covenant, or other agreement contained in this Agreement, a "Change of Control" means (i) in the acquisition by event that any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities conditions precedent to the obligations of the Buyer; or such Party (ii) individuals whoas contained in Article 6 and 7, as applicable) to consummate the Acquisition is incapable of the date of this Agreementbeing satisfied or fulfilled by June 30, constitute the Board of Directors of the 2008; or (h) By either Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the BuyerSeller, if immediately after giving effect the other party has materially breached any representations, warranty, covenant or agreement contained herein and has not cured within five (5) Business Days or it is unable to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownbe cured.

Termination Prior to Closing. (a) Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement and the parties will transactions contemplated by this Agreement may not be relieved of the obligation terminated, except prior to consummate the Closing and purchase or sell the Assetsas follows: (ai) By the by mutual written consent in writing of the Buyer Sellers and the SellerBuyer; (bii) By by Buyer or Sellers at any time after December 31, 2011 (the Seller in writing, without liability“Outside Date”), if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31such date; provided, 1999 other than as a result of that the breach of this Agreement by the party attempting right to terminate this AgreementAgreement under this Section 10.2(a)(ii) is not available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by such date; (giii) By Seller by Sellers if Buyer breaches in writingany material respect any of the representations, without liabilitywarranties, upon a "Change of Control" covenants or other agreements of Buyer contained in this Agreement, which would give rise to the failure of a condition set forth in Article 8, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Sellers to Buyer specifying such breach; (iv) by Buyer if Sellers breach in any material respect any of the representations, warranties, covenants or other agreements of Sellers contained in this Agreement, which would give rise to the failure of a condition set forth in Article 9, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Buyer to Sellers specifying such breach; or (v) by Buyer or Sellers, if any court or any other Governmental Entity issues an order restraining or prohibiting such party from consummating the sale and purchase of the Equity Interests as provided herein and such order becomes final and non-appealable. (b) In the event that this Agreement is terminated pursuant to Section 10.2(a), all further obligations of the parties under this Agreement shall terminate without further liability of any party to another; provided that nothing in this Section 10.2 shall relieve Sellers or Buyer of any liability for purposes an intentional breach of any covenant in this Agreement prior to the date of termination, which liability shall be subject to the limitations set forth in Article 11 of this Agreement, a "Change and the parties shall be entitled to seek the remedy of Control" means (i) the acquisition by specific performance as set forth in Section 11.3. Notwithstanding anything in this Section 10.2, or any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date Section of this Agreement, constitute to the Board of Directors of the Buyer cease for contrary, in no event shall Sellers have any reason liability to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect and Buyer shall have no claim against Sellers, for damages of any type or nature arising from any violation or breach of any representations or warranties made by Sellers to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownBuyer in this Agreement.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated, and the foregoing, the parties will transactions contemplated hereby may be relieved of the obligation to consummate the Closing and purchase or sell the Assetsabandoned: (a) By 7.1.1 at any time before the Closing, by mutual written consent of the Buyer and the SellerParties; 7.1.2 at any time before the Closing, by Seller or Purchaser upon written notice to the other Party, in the event that any final and non-appealable Law becomes effective which restrains, enjoins or otherwise prohibits or makes illegal the completion of the transactions contemplated by this Agreement or the Ancillary Agreements; 7.1.3 at any time before the Closing, by Purchaser upon written notice to Seller, if: (a) there has been a breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement or any Ancillary Agreement to which it is a party which would result in a failure of, or inability of Seller to satisfy, any condition set forth in Section 6.1, and such breach has not been cured to Purchaser’s reasonable satisfaction within thirty (30) days following Seller’s receipt of written notice of such breach, provided that such 30-day period shall be extended if: (i) such breach is reasonably capable of cure and curing such breach reasonably requires more than thirty (30) days; (ii) Seller commences such cure within such 30-day period and diligently prosecutes and completes such cure before the Outside Date; and (iii) Seller timely pays to Purchaser all liquidated damages in accordance with Section 6.3; or (b) By a Disclosure Schedule Update is delivered to Purchaser that discloses a Seller Material Adverse Effect has occurred, which Seller Material Adverse Effect (i) was not caused by a breach by Purchaser of any provision of this Agreement or any Ancillary Agreement to which it is a party and (ii) has not been cured to Purchaser’s reasonable satisfaction within thirty (30) days following Seller’s delivery to Purchaser of such Disclosure Schedule Update, provided that such 30-day period shall be extended if: (x) such Seller Material Adverse Effect is reasonably capable of cure and curing such Seller Material Adverse Effect reasonably requires more than thirty (30) days; (y) Seller commences such cure within such 30-day period and diligently prosecutes and completes such cure before the Outside Date; and (z) Seller timely pays to Purchaser all liquidated damages in writingaccordance with Section 6.3; 7.1.4 at any time before the Closing, without liabilityby Seller upon written notice to Purchaser, if: (a) there has been a breach by Purchaser of any representation, warranty, covenant or agreement contained in this Agreement or any Ancillary Agreement to which it is a party which would result in a failure of, or inability of Purchaser to satisfy, any condition set forth in Section 6.2, and such breach has not been cured to Seller’s reasonable satisfaction within thirty (30) days following Purchaser’s receipt of written notice of such breach, provided that such 30-day period shall be extended if: (i) such breach is reasonably capable of cure and curing such breach reasonably requires more than thirty (30) days; and (ii) Purchaser commences such cure within such 30-day period and diligently prosecutes and completes such cure before the Outside Date; or (b) a Purchaser Material Adverse Effect has occurred, which Purchaser Material Adverse Effect: (i) was not caused by a breach by Seller of any provision of this Agreement or any Ancillary Agreement to which it is a party; and (ii) cannot be cured to Seller’s reasonable satisfaction within thirty (30) days following Purchaser’s notification to Seller thereof, provided that such thirty 30-day period shall be extended if: (x) such Purchaser Material Adverse Effect is reasonably capable of cure and curing such Purchaser Material Adverse Effect reasonably requires more than thirty (30) days; and (y) Purchaser commences such cure within such thirty 30-day period and diligently prosecutes and completes such cure before the Outside Date; 7.1.5 at any time following [ ] 44 (the “Outside Date”), (a) by Purchaser upon written notice to Seller, if the Buyer Closing shall not have occurred on or before such date and such failure to complete the Closing is not caused by a breach by Purchaser of this Agreement or any Ancillary Agreement to which it is a party, and (ib) fails by Seller upon written notice to perform Purchaser if the Closing shall not have occurred on or before such date and such failure to complete the Closing is not caused by a breach by Seller of this Agreement or any Ancillary Agreement to which it is a party; 7.1.6 by Purchaser, (a) if Purchaser has not received from Seller by [ ] 45 (the “Reports Cut-Off Date”), all of the Reports, in form and substance reasonably acceptable to Purchaser and which, in any material respect its agreements contained herein required event, individually or in the aggregate, do not disclose any event, result, occurrence, development, fact, change or effect of whatever nature or kind that has or would reasonably be expected to have a Seller Material Adverse Effect; or (b) if Seller has redelivered a Report to Purchaser pursuant to Section 5.15.2 which Purchaser, in the exercise of Purchaser’s reasonable discretion, has determined has or would reasonably be performed expected to have a Seller Material Adverse Effect; 7.1.7 by it on Purchaser or prior Seller upon written notice to the Closing Date, or other Party no later than thirty (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (1030) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liabilityUPSC Approval Deadline, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same UPSC Approval has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By received 44 NTD: Purchaser to provide the Buyer in writing, without liability, if Buyer elects Outside Date consistent with the RFP. 45 NTD: Purchaser to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either provide the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement Reports Cut-Off Date. by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidationUPSC Approval Deadline, or exchange of shares or sale or other disposition of all or substantially all of if the assets of UPSC Approval has been received before the Buyer, if immediately after giving effect UPSC Approval Deadline but not in form and substance acceptable to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownPurchaser in its sole discretion.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated, and the foregoingtransactions contemplated hereby may be abandoned: at any time before the Closing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By the by mutual written consent of the Buyer Parties; at any time before the Closing, by Seller or Purchaser upon written notice to the other Party, in the event that any final and non-appealable Law becomes effective which restrains, enjoins or otherwise prohibits or makes illegal the completion of the transactions contemplated by this Agreement or the Ancillary Agreements; at any time before the Closing, by Purchaser upon written notice to Seller; , if: (a) there has been a breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement or any Ancillary Agreement to which it is a party which would result in a failure of, or inability of Seller to satisfy, any condition set forth in Section VI.1, and such breach has not been cured to Purchaser’s reasonable satisfaction within thirty (30) days following Seller’s receipt of written notice of such breach, provided that such 30-day period shall be extended if: (i) such breach is reasonably capable of cure and curing such breach reasonably requires more than thirty (30) days; (ii) Seller commences such cure within such 30-day period and diligently prosecutes and completes such cure before the Outside Date; and (iii) Seller timely pays to Purchaser all liquidated damages in accordance with Section 6.3; (b) By a Disclosure Schedule Update is delivered to Purchaser that discloses a Seller Material Adverse Effect has occurred, which Seller Material Adverse Effect (i) was not caused by a breach by Purchaser of any provision of this Agreement or any Ancillary Agreement to which it is a party and (ii) has not been cured to Purchaser’s reasonable satisfaction within thirty (30) days following Seller’s delivery to Purchaser of such Disclosure Schedule Update, provided that such 30-day period shall be extended if: (x) such Seller Material Adverse Effect is reasonably capable of cure and curing such Seller Material Adverse Effect reasonably requires more than thirty (30) days; (y) Seller commences such cure within such 30-day period and diligently prosecutes and completes such cure before the Outside Date; and (z) Seller timely pays to Purchaser all liquidated damages in writingaccordance with Section 6.3; or (c) there has been a breach by Seller or Pledgor of any representation, without liabilitywarranty, covenant or agreement contained in any Purchaser Security Agreement to which it is a party, and such breach has not been cured to Purchaser’s reasonable satisfaction within five (5) Business Days following Seller’s receipt of written notice of such breach, provided that such 5-Business Day period shall be extended if: (i) such breach is reasonably capable of cure and curing such breach reasonably requires more than five (5) Business Days; and (ii) Seller commences such cure within such 5-Business Day period and diligently prosecutes and completes such cure within an additional five (5) Business Days; at any time before the Closing, by Seller upon written notice to Purchaser, if: (a) there has been a breach by Purchaser of any representation, warranty, covenant or agreement contained in this Agreement or any Ancillary Agreement to which it is a party which would result in a failure of, or inability of Purchaser to satisfy, any condition set forth in Section VI.2, and such breach has not been cured to Seller’s reasonable satisfaction within thirty (30) days following Purchaser’s receipt of written notice of such breach, provided that such 30-day period shall be extended if: (i) such breach is reasonably capable of cure and curing such breach reasonably requires more than thirty (30) days; and (ii) Purchaser commences such cure within such 30-day period and diligently prosecutes and completes such cure before the Outside Date; or (b) a Purchaser Material Adverse Effect has occurred, which Purchaser Material Adverse Effect: (i) was not caused by a breach by Seller of any provision of this Agreement or any Ancillary Agreement to which it is a party; and (ii) cannot be cured to Seller’s reasonable satisfaction within thirty (30) days following Purchaser’s notification to Seller thereof, provided that such thirty 30-day period shall be extended if: (x) such Purchaser Material Adverse Effect is reasonably capable of cure and curing such Purchaser Material Adverse Effect reasonably requires more than thirty (30) days; and (y) Purchaser commences such cure within such thirty 30-day period and diligently prosecutes and completes such cure before the Outside Date; at any time following [__________]46 (the “Outside Date”), (a) by Purchaser upon written notice to Seller, if the Buyer Closing shall not have occurred on or before such date and such failure to complete the Closing is not caused by a breach by Purchaser of this Agreement or any Ancillary Agreement to which it is a party, and (ib) fails by Seller upon written notice to perform Purchaser if the Closing shall not have occurred on or before such date and such failure to complete the Closing is not caused by a breach by Seller of this Agreement or any Ancillary Agreement to which it is a party; by Purchaser, (a) if Purchaser has not received from Seller by [__________]47 (the “Reports Cut-Off Date”), all of the Reports, in form and substance reasonably acceptable to Purchaser and which, in any material respect its agreements contained herein required event, individually or in the aggregate, do not disclose any event, result, occurrence, development, fact, change or effect of whatever nature or kind that has or would reasonably be expected to be performed by it on or prior to the Closing Date, have a Seller Material Adverse Effect; or (iib) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the if Seller has notified the Buyer of its intent redelivered a Report to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate Purchaser pursuant to Section 6.1 V.15.2 which Purchaser, in the exercise of Purchaser’s reasonable discretion, has determined has or Section 6.2 hereof; (f) By either the would reasonably be expected to have a Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownMaterial Adverse Effect.

Termination Prior to Closing. (a) Notwithstanding anything in this Agreement to the foregoingcontrary, this Agreement and the parties will transactions contemplated by this Agreement may not be relieved of the obligation terminated, except prior to consummate the Closing and purchase or sell the Assetsas follows: (ai) By the by mutual written consent in writing of the Buyer Seller and the SellerBuyer; (bii) By by Buyer or Seller at any time after November 30, 2010 (the Seller in writing, without liability“Outside Date”), if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31such date; provided, 1999 other than as a result of that the breach of this Agreement by the party attempting right to terminate this AgreementAgreement under this Section 10.1(a)(ii) is not available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by such date; (giii) By by Seller if Buyer breaches in writingany material respect any of the representations, without liabilitywarranties, upon a "Change of Control" covenants or other agreements of Buyer contained in this Agreement, which would give rise to the failure of a condition set forth in Section 8.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Seller to Buyer specifying such breach; (iv) by Buyer if Seller breaches in any material respect any of the representations, warranties, covenants or other agreements of Seller contained in this Agreement, which would give rise to the failure of a condition set forth in Section 9.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of written notice by Buyer to Seller specifying such breach; or (v) by Buyer or Seller, if any court or any other Governmental Entity issues an order restraining or prohibiting such party from consummating the sale and purchase of the Equity Interest as provided herein and such order becomes final and non-appealable. (b) In the event that this Agreement is terminated pursuant to Section 10.1(a), all further obligations of the parties under this Agreement shall terminate without further liability of any party to another; provided that nothing in this Section 10.1 shall relieve Seller or Buyer of any liability for purposes an intentional breach of any covenant in this Agreement prior to the date of termination, which liability shall be subject to the limitations set forth in Article 11 of this Agreement, a "Change and the parties shall be entitled to seek the remedy of Control" means (i) the acquisition by specific performance as set forth in Section 11.3. Notwithstanding anything in this Section 10.1, or any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date Section of this Agreement, constitute to the Board of Directors of the Buyer cease for contrary, in no event shall Seller have any reason liability to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect and Buyer shall have no claim against Seller, for damages of any type or nature arising from any violation or breach of any representations or warranties made by Seller to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownBuyer in this Agreement.

Termination Prior to Closing. Notwithstanding the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By the mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case failure or breach is not cured within ten (10) days after the Seller has notified the Buyer of such failure or breach and of its intent to terminate this Agreement pursuant to this subparagraph, or (iii) has not received one of the documents described in Section 9.4(b) (i) or (ii), or an irrevocable commitment from the EPA that Buyer will receive one of the two documents referenced herein on or before the date forty-five (45) days after the Effective Date (unless Buyer has waived such condition); (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case failure or breach is not cured within ten thirty (1030) days after the Buyer has notified the Seller of such failure or breach and of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by By either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof;; or (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31June 26, 1999 1998 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own.

Termination Prior to Closing. Notwithstanding This Agreement may be terminated at any time prior to the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the AssetsClosing: (a) By the mutual written consent of all the Buyer and the Sellerparties hereto; (b) By the Seller CCL in writing, without liability, if the Buyer KOC Acquisition or Enterprises shall (i) fails fail to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches breach in any material respect any of its representations, representations or warranties or covenants contained herein, which failure or breach in either case is not cured within ten thirty (1030) days after the Seller CCL has notified the Buyer KOC Acquisition and Enterprises of its intent to terminate this Agreement pursuant to this subparagraphArticle VII; (c) By the Buyer KOC Acquisition in writing, without liability, if the Seller CCL or TCCC shall (i) fails fail to perform in any material respect its agreements contained herein required to be performed by them it on or prior to the Closing Date, or (ii) materially breaches breach in any material respect any of its representations, representations or warranties or covenants contained herein, which failure or breach in either case is not cured within ten thirty (1030) days after the Buyer has XXX Xxxxxxxxxxx xxs notified the Seller CCL and TCCC of its intent to terminate this Agreement pursuant to this subparagraphArticle VII; (d) Subject to Section 5.5 hereof, by By either the Seller CCL or the Buyer KOC Acquisition in writing, without liability, if there is issued shall be any final, non-appealable order, writ, injunction or decree of any court or governmental or regulatory agency Governmental Authority binding on the Buyer KOC Acquisition, Enterprises, CCL or the Seller TCCC, which prohibits or materially restrains the Buyer KOC Acquisition, Enterprises, CCL or the Seller TCCC from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency;or (e) By the Buyer in writingeither CCL or KOC Acquisition, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result the first anniversary of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes execution of this Agreement, a "Change of Control" means (i) unless the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more failure of the voting securities Closing to occur by such date is due to the failure of the Buyer; party seeking to terminate this Agreement to perform or (ii) individuals who, as observe the covenants and agreements of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownparty set forth herein.

Termination Prior to Closing. Notwithstanding (a) This Agreement and the foregoing, the parties will transactions contemplated by this Agreement may be relieved of the obligation to consummate the Closing and purchase or sell the Assetsterminated as follows: (ai) By the by mutual written consent in writing of the Buyer Seller and the SellerBuyer; (bii) By by Buyer or Seller at any time after July 31, 2011 (the Seller in writing, without liability“Outside Date”), if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31such date subject however to the right of Buyer or Seller to extend the Outside Date as set forth below; provided, 1999 other than as a result of that the breach of this Agreement by the party attempting right to terminate this Agreement under this Section 11.2(a)(ii) is not available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by such date, provided further, that if the Closing has not occurred due to or related to either (x) any formal or informal action, review, investigation or proceeding by any Governmental Entity of any Person or (y) because MedCath Corporation shall not have obtained any approvals of the shareholders of MedCath Corporation which it has determined in its reasonable discretion are required under the Delaware General Corporation Law for MedCath Corporation to authorize Seller to consummate the transactions contemplated under this Agreement, then in either of such events, Buyer or Seller may elect, by providing written notice to the other party hereto, to extend the Outside Date to September 30, 2011, provided that the right to so extend the Outside Date under this Section 11.2(a)(ii) is not available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur by July 31, 2011; (giii) By by Seller if Buyer breaches in writingany material respect any of the representations, without liabilitywarranties, upon a "Change of Control" covenants or other agreements of Buyer (for purposes of contained in this Agreement, which would give rise to the failure of a "Change condition set forth in Section 8.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of Control" means written notice by Seller to Buyer specifying such breach; (iiv) by Buyer if Seller breaches in any material respect any of the acquisition by any individualrepresentations, corporationwarranties, company, association, joint venture covenants or other entityagreements of Seller contained in this Agreement, which would give rise to the failure of beneficial ownership a condition set forth in Section 9.1, which breach cannot be or has not been cured within fifteen (15) days after the giving of 25% written notice by Buyer to Seller specifying such breach; (v) by Buyer or more Seller, if any court or any other Governmental Entity issues an order restraining or prohibiting such party from consummating the sale and purchase of the voting securities of the BuyerPurchased Assets as provided herein and such order becomes final and non-appealable; or or (iivi) individuals who, as of by Buyer if a Material Adverse Effect shall have occurred since the date of this Agreement. (b) In the event that this Agreement is terminated pursuant to Section 11.2(a), constitute the Board of Directors all further obligations of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyerparties under this Agreement shall terminate; provided that nothing in this Section 11.2 shall relieve Seller or (iii) the consummation by the Buyer of a reorganizationany liability for an intentional breach of any covenant in this Agreement prior to the date of termination, merger or consolidationand the parties shall be entitled to seek and recover damages for such matters and to seek the remedy of specific performance as set forth in Section 12.3, provided however, the right to seek damages and/or rights to specific performance shall be subject to the limitations set forth in Articles 11 and 12 of this Agreement. Further, notwithstanding anything in this Section 11.2, or exchange any other Section of shares or sale or other disposition of all or substantially all of this Agreement, to the assets of the contrary, in no event shall Seller have any liability to Buyer, if immediately after giving effect and Buyer shall have no claim against Seller, for damages of any type or nature arising from any violation or breach of any representations or warranties made by Seller to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially ownBuyer in this Agreement.