Common use of By Purchaser Clause in Contracts

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

By Purchaser. i. At any time prior to the end of the Due Diligence Period by written notice to the Seller and the Company; ii. At any time after the Initial Closing and prior to the Second Closing, if: A. there has been a breach of any of the covenants or agreements or any of the representations or warranties (ior any such representation or warranty will cease to be true and correct) on the part of Seller or the Company set forth in this Agreement or any other agreement contemplated hereby, which breach or failure to be true and correct, either individually or in the aggregate with all other breaches (or failures of such representations and warranties to be true and correct), would constitute, if Company shall have breached occurring or failed continuing on the Second Closing Date, the failure of the conditions set forth in Section II.f, provided, that the right to perform terminate this Agreement under this Section IV.d.2.ii.A will not be available to the Purchaser if it is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which Agreement or any other agreement contemplated hereby. If the Purchaser desires to terminate this Agreement because of an alleged breach or failure to performbe true and correct as provided in this Section VI.d.2.ii.A, either individually then Purchaser must notify Seller and the Company in writing of its intent to terminate stating the reason therefor. Seller or in the aggregateCompany, as applicable, will have twenty (20) days from the receipt of such notice to cure the alleged breach or failure to be true and correct, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failurefailure to be true and correct is capable of being cured; or ▇. ▇▇▇▇▇ has denied the Rule 1017 Application in a final non-appealable judgment. If the Agreement is terminated pursuant Section VI.d.2.ii, Seller shall pay to Purchaser an amount equal to Two Million Dollars (ii$2,000,000) if Company or by direct bank wire to the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that Purchaser shall deliver to the shareholders of Seller the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange ActInitial Closing Membership Interests. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.

By Purchaser. (i) if if, prior to the purchase of Shares pursuant to the Offer, the Independent Committee shall have withdrawn, modified or changed in a manner adverse to Parent or Purchaser its approval or recommendation of the Offer, this Agreement or the Merger or shall have recommended an Acquisition Proposal or the Company (acting through the Independent Committee) shall have executed an agreement in principle or definitive agreement relating to an Acquisition Proposal with a person or entity other than Parent, Purchaser or their affiliates (or the Independent Committee resolves to do any of the foregoing); or (ii) if, due to an occurrence not involving a breach by Parent, Purchaser or Acquisition Sub of their respective obligations hereunder, which makes it impossible to satisfy any of the conditions set forth in Annex A hereto, Purchaser shall have failed to commence the Offer in accordance with this Agreement; or (iii) if, prior to the purchase of Shares pursuant to the Offer, the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth other obligations contained in this Agreement, which Agreement or if any representation or warranty of the Company shall have become untrue (except where the breach or failure untruth of such representations or warranties results from changes specifically permitted by this Agreement or from any transaction expressly consented to perform, either individually or in the aggregate, if occurring or continuing on the date on writing by Parent) which the Closing would otherwise occur (A) would result in give rise to the failure of any of the conditions a condition set forth in Section 6.1 paragraph (f) or 6.2 (a “Company Terminating Breach” g) of Annex A hereto and (B) cannot be or has not been cured or has not been waived by the earlier of within ten (110) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right Purchaser may not terminate this Agreement pursuant to terminate that this Section 7.1(d)(iii) if Parent or Purchaser is specified then in such notice material breach of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial its representations, warranties, covenants or curative period.other obligations under this Agreement; or

By Purchaser. (i) if the Company shall have breached or failed to perform in any material respect any of its representationsobligations hereunder or shall have breached in any respect any representation or warranty contained herein qualified by materiality or shall have breached in any material respect any representation or warranty not so qualified, warrantiesand the Company has failed to perform such obligation or cure such breach, covenants or agreements set forth within 30 days of its receipt of written notice thereof from Purchaser, and such failure to perform shall not have been waived in accordance with the terms of this Agreement; (ii) if the Board of Directors of the Company or any committee thereof withdraws or modifies (or publicly announces its intention to do so, which breach or failure resolves to perform, either individually do so) in a manner adverse to Purchaser (as determined by Purchaser in its reasonable judgment) its approval or in recommendation of this Agreement or the aggregate, transactions contemplated hereby or approves or recommends a Transaction Proposal; (iii) if occurring or continuing on the date on which Board of Directors of the Closing would otherwise occur Company publicly announces its determination not to effect the Distributions; (Aiv) would result in the failure of if any of the conditions set forth in Section 6.1 9.01 or 6.2 9.03 shall become impossible to fulfill (other than as a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived result of any breach by the earlier Purchaser of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (Dthis Agreement) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting shall not have been waived in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more the terms of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; orthis Agreement; (v) if permitted pursuant to Section 8.04 or 8.06; (vi) if the Company has experienced, or is reasonably likely shall make any substantive amendment to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days any Transaction Agreement after notice of intention to terminate is given by the Review Cut-Off Time without Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.'s consent;

By Purchaser. The Acquired Eligible Receivables are freely assignable by the Purchaser, other than to a paper-based packaging competitor of the Sellers. This Agreement and any of Purchaser’s rights, interests or obligations hereunder may not be assigned or otherwise 4864-7968-1754, v.74933-2778-3252, v.4 transferred, in whole or in part, by Purchaser without the prior written consent of Sellers and any such purported assignment or transfer without such consent shall be void and of no effect; provided, that no consent of any Seller, the Sellers Agent or Servicer shall be required in the event (i) if Company shall have breached of an assignment or failed transfer to perform any an Affiliate of its representations, warranties, covenants Purchaser or agreements set forth in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or of the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger occurrence and the approval continuance of a Notification Event caused by a breach of this Agreement by any Seller, the shareholders Sellers Agent or Servicer; provided, further, for the avoidance of doubt, this sentence shall not restrict the Company, (C) materially breached Purchaser from assigning or transferring the Acquired Eligible Receivables. Subject to the terms of Section 5.3 in the Participation Letter, the Purchaser may at any respect adverse to Purchasertime, without the consent of, or notice to, any Seller, the Sellers Agent or Servicer, sell participations to Eligible Participants (Deach, a “Participant”) materially breached its in all or a portion of the Purchaser’s rights and/or obligations under Section 5.4 this Agreement; provided, that (x) the Purchaser’s obligations under this Agreement shall remain unchanged, (y) the Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations, and (z) the Seller, the Sellers Agent and Servicer shall continue to deal solely and directly with the Purchaser in connection with the Purchaser’s rights and obligations under this Agreement. Notwithstanding the foregoing, Purchaser hereby agrees, and Sellers hereby acknowledge, that (x) Purchaser will require each Eligible Participant to whom a participation is sold to fund its pro rata portion of any Additional Funding Amounts payable pursuant to Clause 3.3(b) (it being understood that such pro rata portion may be the pro rata amount required to be funded pursuant to Clause 3.3(b) or an amount in excess of a base amount of the Purchaser Amount Balance not participated by failing the Purchaser pursuant to callthis Clause 17.9) and that Purchaser will grant each Eligible Participant the right to direct the Purchaser to reduce the Eligible Obligor Limit for any Eligible Obligor Group to zero on 45 days prior written notice to Purchaser and effective on a Monthly Date (and during such 45 day period such Eligible Obligor Limit will automatically and without further notice to or consent of Seller, give the Sellers Agent or Servicer, and notwithstanding any other provision of this Agreement, equal the then outstanding principal amount of the Acquired Eligible Receivables due from the related Eligible Obligor Group on the date such notice ofis delivered) and (y) (I) on such Monthly Date of effectiveness, convene the Eligible Obligor Limit for such Eligible Obligor Group shall automatically and hold without further notice to or consent of Seller, the Company Shareholders Meeting Sellers Agent or Servicer, and notwithstanding any other provision of this Agreement, be reduced to zero and (II) any such reduction may result in an automatic and contemporaneous reduction of the Commitment pursuant to the definition of “Commitment.” If the Purchaser shall notify the Sellers Agent that an Eligible Participant shall (i) have failed to fund its pro rata portion of an Additional Funding Amount (or has notified the Purchaser that it does not intend to comply with its funding obligations, has failed to confirm in writing that it intends to comply with its funding obligation by the date requested by the Purchaser in writing following the Purchaser’s determination that it has a reasonable basis to believe that such Eligible Participant will not comply with its funding obligations, or is the subject of a Bankruptcy) or (ii) have directed the Purchaser to reduce the Eligible Obligor Limit for any Eligible Obligor Group, then Sellers Agent may, in its sole discretion, notify the Purchaser that it wishes Purchaser to terminate the participation agreement with such Eligible Participant in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more the terms of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof)related participation agreement, and the Company Board recommends that the shareholders of the Company tender their shares in Purchaser will so terminate such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger agreement and the other transactions contemplated hereby is conditioned upon Commitment shall be reduced by the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis amount of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative periodEligible Participant’s maximum participation amount.

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

By Purchaser. (i) If (A) Purchaser or any of its subsidiaries or affiliates shall have (1) failed to commence the Offer within the time period specified in Section 1.1; (2) terminated the Offer in accordance with its terms; or (3) failed to purchase Shares pursuant to the Offer within 120 days after the commencement of the Offer; or (B) the Offer shall expire without any Shares having been purchased and without Purchaser having an obligation to extend the Offer under Section 1.1, except that in each case, Purchaser may not terminate this Agreement pursuant to this clause if it shall have failed to perform in any material respect any of its material obligations under this Agreement; (ii) In the event that Company has complied in all material respects with Section 6.6 and has determined to accept a Superior Proposal; (iii) If the Effective Date shall not have occurred on or before one year after the date hereof due to a failure of any of the conditions to the obligations of Purchaser set forth in Section 7.1; (iv) If Company shall have withdrawn or modified in a manner adverse to Purchaser its approval or recommendation of the Offer, this Agreement or the Merger, or the Board of Directors shall have resolved to do any of the foregoing, except that Purchaser may not terminate this Agreement pursuant to this clause if it shall have failed to perform in any material respect any of its obligations under this Agreement; or (v) If Company shall have breached or failed to perform in all material respects any of its representations, warranties, covenants obligations or agreements under this Agreement, or any of the representations and warranties of Company set forth in this Agreement, which breach or failure to perform, either individually the Disclosure Schedule or in the aggregateany written certificate or schedule delivered pursuant thereto shall be, if occurring or continuing on the date on which the Closing have become, inaccurate or incomplete in any respect, in each case, with such exceptions as would otherwise occur (A) would result not in the failure of any of the conditions set forth in Section 6.1 or 6.2 (aggregate have a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect on Company and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative periodits Subsidiaries taken as a whole.

By Purchaser. (i) if Company shall have breached or failed To induce Seller to perform any of its representations, warranties, covenants or agreements set forth enter in this Agreement, which breach or failure Purchaser represents and warrants to performSeller as follows: (i) The Purchaser has (and will, either individually or through the Closing Date) duly, truly and fully performed and observed the material undertakings, agreements, warranties, obligations and conditions on the part of the Purchaser that are contained in the aggregateJoint Venture Agreement, if occurring and the Purchaser is not in any respect in material default under or continuing as to any of such undertakings, agreements, warranties, obligations and conditions. The Purchaser's execution, delivery and performance of this Agreement has been authorized by all necessary action on the date on which the Closing would otherwise occur (A) would result in the failure Purchaser's part and does not require any consent, authorization or approval of any of the conditions set forth in Section 6.1 governmental entity or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; orother third party. (ii) if Company This Agreement is the valid and binding obligation of the Purchaser, enforceable in accordance with its terms; (iii) The Purchaser will cause the Joint Venture to comply with the provisions of Section 8 hereof; and (iv) To Purchaser's knowledge, no investigation, action or the Company Board (proceeding is pending and, to Purchaser's knowledge, no action or any committee thereof) proceeding is threatened and no investigation looking toward such an action or proceeding has begun which (A) approved, adopted, endorsed questions the validity of this Agreement or recommended any Company Acquisition Proposalaction to be taken pursuant hereto, (B) failed to recommend will result in any material adverse change in the Merger and the approval of this Agreement by the shareholders business operation, affairs or condition of the CompanyJoint Venture, or (C) materially breached results in or subjects the terms of Joint Venture to a material liability. As used in this Section 5.3 9 and elsewhere in any respect adverse this Agreement, the phrase "to Purchaser, 's knowledge" or (D) materially breached its obligations under Section 5.4 by failing phrases of similar import mean and are limited to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion actual current knowledge of Purchaser, would so materially adversely affect its business without any independent investigation or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensomeinquiry having been made, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely not to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice any constructive knowledge of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.

By Purchaser. (i) if Company Seller shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth contained in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur perform (A) would result in give rise to the failure of any of the conditions a condition set forth in Section 6.1 6.01, Section 6.02(a), Section 6.02(b) or 6.2 (a “Company Terminating Breach” Section 6.02(c) and (B) cannot be cured by Seller by the End Date, or has if capable of being cured by such date, shall not have been cured or has not been waived by the earlier of (1) the Outside Date 30th day following receipt by Seller of written notice of such breach or failure to perform from Purchaser stating Purchaser’s intention to terminate this Agreement pursuant to this Section 7.01(c) and the basis for such termination and (2) 30 days after the giving End Date; provided, however, that Purchaser shall not have the right to terminate this Agreement pursuant to this Section 7.01(c) if Purchaser is then in breach of written notice any representations, warranties, covenants or other agreements hereunder which breach would result in a condition to Company of such breach the Closing set forth in Section 6.01, Section 6.03(a) or failureSection 6.03(b) not being satisfied; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed DOE issues a written response to recommend the Merger and DOE Preacquisition Application following the approval of this Agreement by the shareholders completion of the Company, (C) materially breached the DOE’s comprehensive review setting forth any terms of Section 5.3 in any respect adverse or conditions to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more issuance of the outstanding shares PPA approving the change of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and ownership following the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse EffectClosing, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intentioncontains a Burdensome Condition; provided, however, that Purchaser shall not have the right to terminate that this Agreement pursuant to this Section 7.01(c)(ii) if Purchaser is specified then in such notice material breach of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative period.Section 5.05(b); or

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

By Purchaser. (i) if Company shall have breached Purchaser may not encumber, assign, delegate, or failed to perform any of its representations, warranties, covenants or agreements set forth in otherwise transfer this Agreement, which breach or failure to perform, either individually in whole or in part, without the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure prior written consent of any of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchaser, or (D) materially breached its obligations under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof)Seller, and the Company Board recommends that the shareholders any such purported assignment, delegation or other transfer without such consent shall be void ab initio and of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intentionno effect; provided, however, that following the right Closing, Purchaser may, without the prior written consent of Seller, assign, delegate, or otherwise transfer this Agreement, in whole or in part, only such that there are no more than two (2) assignees at any time, and only (i) as part of a sale of all or substantially all of Purchaser’s business; (ii) to terminate that is specified an Affiliate of Purchaser; (iii) to a special purpose vehicle created to be bankruptcy remote and for financing purposes of Purchaser and its Affiliates; (iv) to any successor by merger, by operation of Law, or in the event of a change of control of Purchaser (including as a result of any change, directly or indirectly, in the beneficial ownership of the voting securities of Purchaser); or (v) by way of a grant of a security interest therein to a financial institution or other lender (with consent to foreclose thereon) subject to the conditions set forth in this Section 9.5(a). In the event of an assignment, delegation, or other transfer of Purchaser’s obligations under this Agreement pursuant to clauses (i) through (iv) (inclusive), the transferee under such notice assignment, delegation, or other transfer must (A) agree, in writing, for the benefit of intention Seller, to perform all such assigned obligations under this Agreement (and the corresponding obligations under the Escrow Agreement), and to be bound by all the provisions of this Agreement (and of the Escrow Agreement) relating to such assigned obligations, as if such transferee were the “Purchaser” under this Agreement (and under the Escrow Agreement) (and Purchaser shall itself terminate unless notice deliver a copy of termination is given such writing to Seller within five (5) Business Days following the effectiveness of such assignment), and (B) such transferee must be subject to confidentiality and non-use obligations at least as stringent as those set forth in Section 7.10. In the event of an assignment, delegation, or other transfer by Purchaser within fifteen permitted under clause (15v) days following (i.e., by way of a grant of a security interest), Purchaser shall (1) notify the end secured party that such secured party shall be bound by the applicable provisions of this Agreement (and of the Escrow Agreement) and (2) use its commercially reasonable best efforts to ensure compliance with clauses (A) and (B). In the event that, as a result of an assignment under this Section 9.5(a), there are two transferees as permitted under this Section 9.5(a), Purchaser (or the transferees, as applicable) shall designate one such remedial or curative periodtransferee as the primary party with which Seller shall correspond for purposes of this Agreement.

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

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

By Purchaser. (i) if Company shall have breached or failed to perform Neither this Agreement nor any of its representationsPurchaser’s rights, warrantiesinterests or obligations hereunder (including Purchaser’s rights in respect of the Purchased Receivables) may be assigned, covenants delegated or agreements set forth otherwise transferred, in this Agreement, which breach or failure to perform, either individually whole or in the aggregatepart, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure by operation of any Law, merger, change of the conditions set forth in Section 6.1 or 6.2 (a “Company Terminating Breach” ) and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 5.3 in any respect adverse to Purchasercontrol, or (D) materially breached its obligations under Section 5.4 by failing to callotherwise, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser without the prior written consent of Seller (such consent not to be unreasonably withheld, delayed or a Subsidiary thereofconditioned), and the Company Board recommends that the shareholders any such purported assignment, delegation or transfer without such consent shall be void ab initio and of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effect, which is not remedied or cured within thirty (30) days after notice of intention to terminate is given by Purchaser, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intentionno effect; provided, however, that following the right Closing, Purchaser may, upon [***] prior written notice to terminate Seller, but without the prior written consent of Seller, assign this Agreement and all of Purchaser’s rights, interests and obligations hereunder, in whole, to an Affiliate of Purchaser or to a fund that is specified in such notice of intention shall itself terminate unless notice of termination is given exclusively managed by Purchaser within fifteen or by its Affiliate (15in each case, an “Affiliate Transferee”) days following if (i) such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller, to perform all obligations under, and to be bound by all the end provisions of, this Agreement (including Section 6.11 and each of the other covenants set forth in Article VI that are applicable to Purchaser) as if such Affiliate Transferee were the “Purchaser” under this Agreement, (ii) such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller and the Escrow Agent, to perform all obligations under, and to be bound by the provisions of, the Escrow Agreement as if such Affiliate Transferee were a “Purchaser” under the Escrow Agreement, (iii) such Affiliate Transferee’s creditworthiness (after giving effect to such assignment) is at least as favorable to Seller as that of Purchaser at the time of such remedial assignment and (iv) such Affiliate Transferee represents and warrants to Seller that each of the representations and warranties set forth in Article V (including those set forth in Section 5.10) are true and correct as of the date of such assignment as if such Affiliate Transferee were the “Purchaser” under this Agreement (with such modifications to Section 5.1 and the first sentence of Section 5.10 as are necessary to account for such Affiliate Transferee’s entity type and jurisdiction of organization (but, in any event, the first sentence of Section 5.10 shall confirm that such Affiliate Transferee is exempt from United States federal withholding tax on all payments with respect to the Purchased Receivables) and with such language giving effect to such modifications as shall be agreed to by Seller (such agreement of Seller not to be unreasonably withheld, delayed or curative periodconditioned)).

By Purchaser. Effective upon the Closing, Purchaser Release Parties do hereby remise, release, acquit, waive, satisfy and forever discharge Seller Release Parties from any and all manner of debts, accountings, bonds, warranties, representations, covenants, promises, contracts, controversies, agreements, liabilities, obligations, expenses, damages, judgments, executions, objections, defenses, setoffs, actions, claims, demands and causes of action of any nature whatsoever, whether at law or in equity, whether known or unknown, either now accrued or hereafter maturing, which Purchaser Release Parties, or any of them, now or hereafter can, shall or may have by reason of any matter, cause or thing from the beginning of the world to and including the date of this Agreement, arising out of or relating to (i) if Company shall have breached the Property, and (ii) the sale of and management of the Property after the sale pursuant to the terms of this Agreement, and Purchaser Release Parties, jointly and severally, for themselves and all of their respective heirs, successors and assigns, hereby covenant and agree never to institute or failed cause to perform be instituted or continue prosecution of any suit or other form of action or proceeding of any kind or nature whatsoever against any of its representationsSeller Release Parties, warrantiesby reason of or in connection with any of the foregoing matters, covenants claims or agreements causes of action. The foregoing release and covenant not to ▇▇▇ shall not relate or apply to any of the covenants, agreements, representations or warranties of Seller set forth in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur . Each of Purchaser Release Parties represents and warrants that (A) would result no Purchaser Release Party has assigned, in the failure of whole or in part, any of the conditions set forth in Section 6.1 claims, matters, or 6.2 (a “Company Terminating Breach” ) and causes of action released herein; (B) cannot be this waiver and release is voluntary and without any duress or has not been cured or has not been waived by the earlier of (1) the Outside Date undue influence, and (2) 30 days after the giving of written notice to Company of such breach or failure; or (ii) if Company or the Company Board (or any committee thereof) has (A) approved, adopted, endorsed or recommended any Company Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders is given as part of the Company, consideration for this Agreement; (C) materially breached it may hereafter discover facts different from or in addition to those, which it now believes to be true with respect to the terms foregoing release of Section 5.3 in any respect adverse to Purchaser, or claims; and (D) materially breached its obligations the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts. Each of Purchaser Release Parties expressly waives and assumes the risk of any and all claims, demand, obligations, or causes of action for damages arising out of any matter which may exist as of this date but which any of Purchaser Release Parties does not know or suspect to exist in their favor, for any reason, including ignorance, oversight, error, negligence, or otherwise, and which, if known, would or could affect their decision to enter into this Agreement. Each of Purchaser Release Parties expressly waives all rights under Section 5.4 by failing to call, give notice of, convene and hold the Company Shareholders Meeting in accordance with Section 5.4; or (iii) if a tender offer or exchange offer for 20% or more 1542 of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Company Board recommends that the shareholders Civil Code of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act. (iv) if any approval State of California and all other similar provisions of any Governmental Entity required for consummation of the Merger and the other transactions contemplated hereby is conditioned upon the satisfaction statute or common law ruling of any condition or requirement that, in the reasonable opinion of Purchaser, would so materially adversely affect its business or the economic benefits of the Merger to Purchaser as to render consummation of the Merger unduly burdensome, and the time period for appeals and request for reconsideration has run; or (v) if Company has experienced, or is reasonably likely to experience, a Company Material Adverse Effectother jurisdiction, which is not remedied Purchaser Release Parties understand provide or cured within thirty (30) days after notice of intention may be interpreted to terminate is given by Purchaserprovide as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, which notice shall specify the nature of the matter or matters constituting such Company Material Adverse Effect and which are the basis of such intention; provided, however, that the right to terminate that is specified in such notice of intention shall itself terminate unless notice of termination is given by Purchaser within fifteen (15) days following the end of such remedial or curative periodWHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”