Common use of By Purchaser Clause in Contracts

By Purchaser. (i) if Seller shall have breached in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within ten Business Days after the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time of such breach; (ii) if there shall have occurred any Material Adverse Effect or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Case.

By Purchaser. (i) if any Seller shall have breached in any material respect any of its representationsrepresentation, warrantieswarranty, covenants covenant or other agreements agreement contained in this Agreement, which breach cannot be or has not been cured within ten Business Days after the giving of written notice by Purchaser to Seller specifying Agreement and such breach and so that would give rise to the conditions failure of a condition set forth in Section 7.1(eARTICLE VI, unless such breach is fully cured (i.e., neither the breach, the circumstances relating thereto nor the cure thereof will have a continuing effect on the business of the Company and its Subsidiaries after the Closing) or Section 7.1(f) would not be satisfied at the time expense of such breach;Sellers and to the complete satisfaction of Purchaser on or before the Closing Date. (ii) if there any Seller shall have occurred breached any Material Adverse Effect representation or warranty contained in this Agreement which would give rise to the failure of a condition set forth in ARTICLE VI and such breach objectively can not reasonably be cured to the complete satisfaction of Purchaser by Sellers’ using their best efforts before the Closing Date, unless (x) Seller has, together with the additional disclosure relating to such breach provided pursuant to Section 5.6, provided a detailed calculation of the estimated Purchaser Losses that can reasonably be anticipated might arise from such breach and Purchaser has agreed in good faith with such estimate, (y) such breach can be cured by monetary relief (i.e., neither the breach, the circumstances relating thereto nor the cure thereof will have a continuing effect on the business of the Company and its Subsidiaries after the Closing) and (z) the Sellers agree to specifically indemnify Purchaser in accordance with ARTICLE VIII for any development thatPurchaser Loss resulting from such breach, insofar such indemnification not being subject to the limitations set forth in Section 8.2, and either (1) the estimated Purchaser Loss agreed by Sellers and Purchaser as reasonably can required to be foreseen, payable in respect of such breach (without giving effect to the limitations set forth in Section 8.2) does not exceed five hundred thousand euros (€500,000); or (2) the estimated Purchaser Loss agreed by Sellers and Purchaser as reasonably required to be payable in respect of such breach (without giving effect to the limitations set forth in Section 8.2) exceeds five hundred thousand euros (€500,000) but is reasonably likely less than five million euros (€5,000,000) and the Sellers and Purchaser agree to result decrease the cash to be paid at Closing pursuant to Section 1.4(i) and (ii) (and agree to revised allocation of the Cash Portion in any Material Adverse Effect;a revised Exhibit 1.2) and to increase the Escrow Amount payable pursuant to Section 1.4(iv) and Section 1.4(a)(v) in each case by the total amount of the agreed estimated Purchaser Loss without giving effect to the limitations set forth in ARTICLE VIII (the “Escrow Amount Increase”). (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaseron or after December 15, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) 2005 if the Bankruptcy Court has Closing shall not entered the Bidding Procedures Order by November 2, 2001; (v) have theretofore occurred and if the Bankruptcy Court has failure of the Closing to occur is not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become result of a Final Order breach of a representation, warranty or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than covenant by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Case.

By Purchaser. Upon the terms and subject to the conditions of this Agreement, Purchaser and Parent shall, jointly and severally, indemnify and hold harmless Seller and its shareholders, officers, directors, employees, agents, representatives, successors and assigns (icollectively, the "Seller Indemnitees"), from and against, and will pay them the amount of, any and all Losses incurred or suffered by Seller Indemnitees arising during the twelve (12) if Seller shall have breached month period following the Closing and relating to or arising out of or in connection with any of the following: (1) any material breach as of the Closing Date in any material respect representation or warranty made by Purchaser in this Agreement; (2) any breach or nonfulfillment by Purchaser of any of its representationscovenants, warranties, covenants or agreements or other agreements contained obligations in this Agreement; (3) any Assumed Liability; (4) the ownership of the Purchased Assets following the Closing Date; and (5) the operation of the Business following the Closing Date, which breach canincluding, but not limited to, any third party, tort, or product liability claims; provided, however, (A) the indemnification obligations of Purchaser pursuant to this Section shall not exceed FOUR MILLION DOLLARS ($4,000,000) in the aggregate; (B) Purchaser and Parent shall not be obligated to indemnify the Seller Indemnitees for any loss, injury, damage or has not been cured within ten Business Days after deficiency resulting from any breach of representation or warranty, the giving breach of written notice by which either Seller or Shareholder had Knowledge prior to the Closing Date; and (C) Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would shall not be satisfied at obligated to indemnify the time of such breach; (ii) if there shall have occurred any Material Adverse Effect or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement Indemnitees with respect to an Alternative Transaction and Seller executes and delivers any claims until the total of all such a definitive agreement claims with respect to an Alternative Transaction; such matters exceeds TWO HUNDRED THOUSAND DOLLARS (x$200,000) (the "Purchaser's Threshold") in the aggregate; provided, however, that if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event total amount of Default (as such terms are defined claims exceeds the Threshold in the Loan Agreement) under aggregate, the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent Purchaser Indemnitees shall be entitled to be indemnified against the entire amount of any plan such claims, not merely the portion of reorganization under such claims exceeding the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if SellerPurchaser's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy CaseThreshold. .

By Purchaser. (a) Subject to the limitations contained in this Article X, Purchaser shall indemnify and hold Seller, and its Affiliates, officers, directors, employees, agents, successors, and assigns, and related entities from, and reimburse them for, any loss, cost deficiency, demand, assessment, expense (including all reasonable legal and expert fees and expenses), damage (including damages to Persons, property and the environment), liability, fine, penalty or claim (but not including consequential, punitive or special damages) (collectively, the "Seller Losses") arising out of or resulting from: (i) if Seller shall have breached in any material respect breach of any of its representations, warranties, covenants representation or other agreements contained warranty made by Purchaser in this Agreement, which breach cannot be or has not been cured within ten Business Days after the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time of such breach; (ii) if there shall have occurred Purchaser's breach of or failure to perform any Material Adverse Effect of its covenants or any development that, insofar as reasonably can be foreseen, is reasonably likely agreements contained in or made pursuant to result in any Material Adverse Effectthis Agreement; (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets;Assumed Liability; and (iv) if except as expressly provided elsewhere herein, the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition ownership of the Acquired Assets or the assumption of the Assumed Liabilities from and after the Closing Date. (b) Notwithstanding the foregoing, Purchaser shall have no liability: (1) to the extent that Seller or any Affiliate thereof realizes a Tax Benefit that is attributable to such Seller Loss; and (2) to the extent of any Offsetting Recovery received by a Person entitled to indemnification under Section 10.3(a) in respect of a Seller Loss (provided that the Premium Recapture is deducted for any Offsetting Recovery for purposes of this Section 10.3(b), and, provided further, that the Premium Recapture shall not exceed the amount of the Offsetting Recovery). (c) Notwithstanding the foregoing, Purchaser on shall have no liability for indemnification pursuant to Sections 10.3(a)(i) unless the terms aggregate of all Seller Losses under Sections 10.3(a)(i) for which Purchaser would, but for this subsection (c), be liable exceeds, in the aggregate, five million dollars ($5,000,000). If the condition set forth herein; or (xiiiin the preceding sentence of this Section 10.3(c) if Seller's Bankruptcy Case is converted from a case under Chapter 11 met, then Purchaser shall be liable only for an amount in excess of the Bankruptcy Code five million dollar ($5,000,000) threshold referred to in the preceding sentence. However, in no event shall Purchaser be liable for any Seller Loss pursuant to Sections 10.3(a)(i) or 10.3(a)(ii) that, when added to the amounts that Purchaser has otherwise paid pursuant to Sections 10.3(a)(i) or 10.3(a)(ii), exceeds the amount of sixty-eight million dollars ($68,000,000). In addition, Purchaser shall not be liable to pay Seller Losses more than once with respect to a case under Chapter 7 Seller Loss resulting from the same facts, events or circumstances, even if, for example, such facts, events or circumstances constitute both an Assumed Liability and a breach of any representations and warranties for which Purchaser shall or would but for this provision be obligated to pay Seller Losses hereunder, provided, however, Purchaser shall be liable to pay for Seller Losses that arise out of the Bankruptcy Code same facts, events or is dismissedcircumstances when the Seller Losses resulting from such facts, if a trustee is appointed events or circumstances are not duplicative or result in Seller's Bankruptcy Casedamages, costs or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court liabilities that were not indemnified pursuant to Section 1121(d) in Seller's Bankruptcy Casethe first such indemnification payment.

By Purchaser. At the Closing, Purchaser shall deliver, or cause to be delivered, the following: (i) if Seller shall have breached in any material respect any a certificate, dated the Closing Date, signed by an executive officer of its representationsPurchaser, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within ten Business Days after certifying as to the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions matters set forth in Section 7.1(eSections 7.03(a) or Section 7.1(f) would not be satisfied at the time of such breach; and 7.03(b); (ii) if there shall have occurred any Material Adverse Effect or any development thatpursuant to instructions set forth in the Funds Flow Memorandum, insofar as reasonably can be foreseento each Seller, is reasonably likely a payment in an amount equal to result in any Material Adverse Effect; the proportion of such Seller’s Pro Rata Share of the Closing Payment; (iii) if Purchaser shall have determined that the conditions pursuant to Purchaser's obligations hereunder instructions set forth in Section 7.1(cthe Funds Flow Memorandum, a payment in an amount equal to $3,000,000 (the “Indemnity Escrow Deposit”), to an account (the “Indemnity Escrow Account”) are not capable of being satisfied specified by an escrow agent mutually agreed upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action between the Bank and Purchaser (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift“Escrow Agent”), which restrainsIndemnity Escrow Deposit shall be held, enjoins or otherwise prohibits safeguarded and released pursuant to the acquisition terms of the Escrow Agreement; notwithstanding anything to the contrary herein, the Purchase Price allocable to the Shares held by Purchaser the Minority Shareholders will not be subject to adjustment for the Indemnity Escrow Deposit, and, accordingly, Sellers who are not Minority Shareholders shall bear more than their Pro Rata Share (under clause (i) of such Assets; the definition of Pro Rata Share) of the adjustment to the Purchase Price for the Indemnity Escrow Deposit; (iv) if pursuant to instructions set forth in the Bankruptcy Court has not entered Funds Flow Memorandum, a payment in an amount equal to $2,000,000 (the Bidding Procedures Order “Adjustment Escrow Deposit,” and together with the Indemnity Escrow Deposit, the “Escrow Deposits”) to an account (the “Adjustment Escrow Account”) specified by November 2the Escrow Agent, 2001; which Adjustment Escrow Deposit shall be held, safeguarded and released pursuant to the terms of the Escrow Agreement; (v) if a counterpart to the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; Escrow Agreement; (vi) if pursuant to instructions set forth in the Sale Order has not become a Final Order or if Funds Flow Memorandum, Purchaser shall pay any unpaid amounts of the Sale Order has been revokedBank Transaction Expenses due and owing to any third-party advisors, rescinded or modified in any material respect; such payment to be by wire transfer of immediately available funds; and (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy CaseCross-Receipt.

By Purchaser. (i) if Seller shall have breached in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within ten Business Days after the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time of such breach; (ii) if there shall have occurred any Material Adverse Effect or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- co-proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Case.

By Purchaser. Purchaser shall defend, indemnify and hold Seller harmless from and against any claims, demands, actions, suits, proceedings, judgments, liabilities, settlement amounts, damages, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of or in connection with the following: (a) any claim that the lease amendments described in Section 2 above are a breach of Seller's fiduciary duty to the Partnerships; and (b) the tax returns described in Section 12.5 above (or the failure to file returns) or the execution thereof by Seller and the RSH Controlled Entities; and (c) any liability arising or accruing in connection with (i) Purchaser's ownership of a Undisputed Interest if Seller shall have breached in any material respect any of its representations, warranties, covenants such liability arises or other agreements contained in this Agreement, which breach cannot be or has not been cured within ten Business Days accrues after the giving of written notice by date said Undisputed Interest is conveyed to Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) under this Agreement or Section 7.1(f) would not be satisfied at the time of such breach; (ii) if there shall have occurred any Material Adverse Effect or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth management of Headquarters Newco, Wooded Lot Newco or Bridgeview Newco. Notwithstanding the foregoing, however, this Section does not apply to any otherwise indemnified matter that Seller may incur from a claim by Robe▇▇ ▇. ▇▇▇▇ ▇▇▇/or Lind▇ ▇. ▇▇▇▇ (▇▇ their successors or assigns) arising from their capacities as partners in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory 75th Avenue Tier II Limited Partnership and/or Trak Chicago Tier II Limited Partnership and related to Purchaserany tax liability triggered by any sale, whether or not any Governmental Entity shall have issued an ordercontribution, decree or ruling or taken any other action (which order, decree, ruling joint venture or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins act undertaken by said partnerships or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after Partnerships in which they are partners or with respect to the Petition Date; Properties they own, unless the following conditions are met: (vii) if the Sale Order has not become a Final Order or if the Sale Order applicable Property has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement transferred to a Newco and the Transactions are not Plan of Reorganization as approved by the Bankruptcy Court in accordance with the Sale Order; does not include item (viiic) if Seller gives written notice to from Section 6.5, or Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default substituted for Seller as the general partner in Seventy-Fifth Avenue Associates Limited Partnership and/or Trak Chicago Limited Partnership I, as applicable, by an assignment of the Interim Partnership Interests under this Agreement; and (ii) Purchaser, as manager of the Newco or Event of Default (as such terms are defined general partner as set forth in the Loan preceding clause breaches the partnership agreement of 75th Avenue Tier II Limited Partnership and/or Trak Chicago Tier II Limited Partnership; and (iii) that breach gives rise to the aforesaid tax liability. In addition, the foregoing indemnities under this subparagraph do not apply to any transaction, event or act contemplated by this Agreement, including (without limitation) under the Loan Agreement; (xiithose enumerated in Section 16(e) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Caseabove.

By Purchaser. (i) if Seller shall have breached In the event that Purchaser defaults in any material respect any the observance or performance of its representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured and obligations hereunder after written notice by Seller to Purchaser of such default and Purchaser's failure to cure such default within ten two (2) Business Days after the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time receipt of such breach; (ii) if there notice, Seller shall have occurred be entitled to terminate this Agreement with respect to any Material Adverse Effect or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (Facility for which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court a Facility Closing has not entered the Bidding Procedures Order yet occurred and to which such default relates by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser of such termination and shall also be entitled, as its sole and exclusive remedy hereunder, to receive payment from Escrow Agent of any Earn▇▇▇ ▇▇▇ey relating to such Facility then being held by Escrow Agent and not previously disbursed at any prior Facility Closing hereof as full liquidated damages for such default of Purchaser. The parties hereby acknowledge the difficulty of ascertaining the actual damages in the event of such a default, that it is unable impossible more precisely to obtain estimate the damages to be suffered by Seller upon Purchaser's default and that the aforesaid payments are intended not as a consent required by Section 7.1(c); (ix) if penalty, but as full liquidated damages and that such amounts constitutes a good faith estimate of the potential damages arising therefrom. Seller's Board right to so terminate this Agreement and to receive aforesaid payment as full liquidated damages is Seller's sole and exclusive remedy in the event of Directors determines in good faith, after consultation with outside counseldefault hereunder by Purchaser, and evidenced by a duly adopted board resolutionSeller hereby waives, thatrelinquishes, releases and covenants not to pursue any and all other rights and remedies, including, but not limited to (i) any right to sue ▇▇▇chaser for specific performance of this Agreement, (ii) any right to sue ▇▇▇chaser for damages or to prove that Seller's actual damages exceed the amounts agreed upon herein as full liquidated damages, and (iii) any other right or remedy which Seller may otherwise have against Purchaser, either hereunder, at law, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default equity or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Caseotherwise.

By Purchaser. (i) (A) if Seller shall have breached in any material respect any of its representations, warranties, the covenants or other agreements contained in this Agreement, which breach cannot Agreement to be or has not been cured within ten Business Days after the giving of written notice complied with by Purchaser to Seller specifying such breach and so that the conditions closing condition set forth in Section 7.1(e) or Section 7.1(f5.4(b) would not be satisfied at or (B) if there exists a breach of any representation or warranty of Seller contained in this Agreement such that the time closing condition set forth in Section 5.4(a) would not be satisfied, and, in the case of both (A) and (B), such breach is incapable of being cured by the Termination Date or is not cured by Seller within thirty (30) Business Days after Seller receives written notice of such breachbreach from Purchaser; (ii) if there in the event that prior to obtaining the Stockholder Approval (A) an Adverse Recommendation Change shall have occurred occurred, (B) Seller shall have failed to include in the Proxy Statement the recommendation of the Board of Directors of Seller that its stockholders vote in favor of the transactions contemplated hereby, (C) the Board of Directors of Seller shall have failed to publicly reaffirm its recommendation of this Agreement or the transactions contemplated hereby within five (5) Business Days after Purchaser requests in writing that such recommendation or determination be reaffirmed, (D) a tender or exchange offer relating to any Material Adverse Effect Seller Shares shall have been commenced and Seller shall not have sent to its stockholders, within ten (10) Business Days after the commencement of such tender or any development thatexchange offer, insofar as reasonably can be foreseena statement disclosing that Seller recommends rejection of such tender or exchange offer or (E) a Takeover Proposal is publicly announced, and Seller shall have failed to issue, within five (5) Business Days after such Takeover Proposal is reasonably likely to result announced, a press release that reaffirms the recommendation of the Board of Directors of Seller that its stockholders vote in any Material Adverse Effect;favor of the transactions contemplated hereby; or (iii) if Purchaser shall have determined that the conditions to Purchaser's Seller breaches any of its obligations hereunder set forth in under Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Case8.2.

By Purchaser. In the event of a termination of this Agreement pursuant to Section 8.1(b) by Purchaser, this Agreement shall forthwith become void and of no effect other than as otherwise provided herein and there shall be no liability on the part of any party hereto; provided that the Deposit with accrued interest thereon shall be returned to Purchaser (iafter notice and lapse of time as described below). If Purchaser has terminated this Agreement pursuant to the provisions of Section 8.1(b) if (including the first and second provisos therein) because of a breach of a representation and warranty contained in Section 4.2 by Seller, Purchaser's sole remedy therefor shall be the return of the Deposit and accrued interest thereon. If Purchaser has terminated this Agreement because of a breach of a representation and warranty contained in Section 4.1 or of any obligation of Seller hereunder, Purchaser may pursue all its remedies provided in Section 9.2. Purchaser shall notify Seller that Purchaser has terminated this Agreement pursuant to Section 8.1(b) and specify the grounds for such termination, and Seller shall have breached in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within ten Business Days five (5) days after the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time receipt of such breach; notice to notify Purchaser that it disputes such termination, such notice to state the grounds for such dispute. If Seller does not so notify Purchaser that a dispute exists and the grounds therefor within such five (ii5) if there day period, Seller shall have occurred any Material Adverse Effect or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that pay the conditions Deposit and accrued interest thereon to Purchaser's obligations hereunder set forth . If Seller sends such a notice of dispute to Purchaser within the five (5) day period, Seller shall continue to hold the Deposit in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action accordance with this Agreement until such time as the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order dispute has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement resolved. The Deposit and the Transactions are not approved by the Bankruptcy Court accrued interest thereon shall then be disbursed in accordance with the Sale Order; (viiiresolution of the dispute. The successful party shall be reimbursed for all expenses, including reasonable attorneys' fees, incurred in connection with any successful action brought under this Section 8.2(c). Purchaser shall have no right to Consequential Damages. In no event shall Purchaser have the right to offset amounts due it under this Section 8.2(c) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties or under Applicable Law, it is required to enter into a definitive any other contract or agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event any Affiliate of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Case.

By Purchaser. Upon the occurrence of any event of default by Seller, Purchaser shall give Seller notice thereof and Seller shall have (A) with respect to a default arising under clause (i) if or (ii) of Section 17(a) hereof thirty (30) days within which to cure such default or within which to commence such judicial or other appropriate action as will efficiently and effectively remedy such default; and (B) with respect to a default arising under clause (iv) of Section 17(a) hereof ten (10) days within which to cure such default; and (C) with respect to a default arising under clause (iii) of Section 17(a) hereof, sixty (60) days within which to obtain the dismissal or discharge of any such proceeding. Upon failure by Seller to timely cure any event of default by it, any and all Purchasers shall have breached in any material respect any the option to: (i) purchase the interest of its representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within ten Business Days after Seller at the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions purchase price set forth in Section 7.1(e13(e) or Section 7.1(f) would not be satisfied at the time of such breach; in their prorata share; (ii) if there with respect to (C) of this Section 18(a) above, after expiration of the sixty day period, any and all Purchasers shall automatically succeed to all rights, titles, status and responsibilities which Seller may have occurred regarding the holding and servicing of the Loan, may exercise all of the powers hereinabove granted to Seller, have the option to designate any Material Adverse Effect one Purchaser on behalf of all Purchasers or any development thatperson or firm in its discretion to exercise such powers on behalf of all Purchasers and, insofar in such event, the Loan and all books and records thereof shall be delivered to a Purchaser or its designee, as reasonably can be foreseenapplicable, is reasonably likely to result in any Material Adverse Effect; together with necessary or proper assignments, transfers and documents of authority; and/or (iii) if exercise any and all of the remedies to which Purchaser shall have determined that may be entitled at law or equity. Seller hereby indemnifies Purchaser from any and all loss, damage or expenses (including, but not limited to reasonable attorneys' fees) which Purchaser may sustain or incur by reason of or in consequence of the conditions exercise of its remedies upon any event of default by Seller pursuant to Purchaser's obligations hereunder set forth this Section 18(a) other than direct costs incurred in Section 7.1(c) are not capable connection with any purchase of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Caseinterest.

By Purchaser. (i) if Seller shall have breached If prior to Closing, Purchaser breaches in any material respect any of its representationscovenants, warrantiesobligations, covenants liabilities or other agreements contained duties hereunder without such breach being cured within applicable notice and cure periods, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewith, or if any of Purchaser's representations and warranties prove to be false in any material respect as of the date deemed to be made, then Seller shall be entitled to elect one of the following options: (a) terminate its obligation to sell and Purchaser's obligation to purchase the Property and not proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Earnest Money from Escrow Agent pursuant to the Earnest Money T▇▇▇▇ ▇▇reement and/or Purchaser, as applicable, and ▇▇▇▇▇▇ the Earnest Money as its sole and exclusive remedy and as liquidated da▇▇▇▇▇ ▇or Purchaser's breach of this Agreement, which breach canany and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or has not been cured within ten Business Days after (b) in the giving of written notice by Purchaser to Seller specifying such breach event Closing occurs, exercise the rights and so that the conditions remedies set forth in Section 7.1(e) or Section 7.1(f) would 6.3. Further, in the event Seller elects not be satisfied at to proceed to Closing and receives and retains the time Earnest Money as provided herein, and because the actual damages suff▇▇▇▇ ▇y Seller as a result of such breach; breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser and Seller agree that the amount of the Earnest Money shall be the amount of damages to which Seller is entit▇▇▇ ▇▇ such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the Earnest Money by Seller pursuant to (iia) if there above, this Agreement, includ▇▇▇ ▇▇▇ purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated, and the parties shall have occurred no further rights, obligations or liabilities hereunder, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any Material Adverse Effect or proceedings under the Bankruptcy Code) and expenses as hereinafter provided and any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that the conditions to Purchaser's indemnification obligations hereunder set forth in Section 7.1(c) are this Agreement shall not capable be limited hereby. If Purchaser hinders, delays, contests or interferes with Seller's receipt or retention of being satisfied upon terms reasonably satisfactory the Earnest Money (or attempts to Purchaser, whether or not do any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action of the parties hereto shall use their reasonable efforts to liftforegoing), which restrainsthen in ▇▇▇ ▇▇▇ion brought thereon, enjoins the prevailing party shall be entitled to recover reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2on appeal or review, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in including any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization proceedings under the Bankruptcy Code filed with Code). If Seller is the Bankruptcy Court which does not contemplate an acquisition prevailing party, such amounts shall be in addition to retention of the Acquired Assets by Earnest Money, and if Purchaser on is the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 prevailing party, such a▇▇▇▇▇▇ shall be in addition to the return of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Earnest Money by Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Case.

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 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 Seller of an assignment or transfer to an Affiliate of Purchaser or (ii) of the occurrence of a Notification Event caused by a breach of this Agreement by any Seller, the Sellers Agent or Servicer; provided, further, for the avoidance of doubt, this sentence shall have breached not restrict the Purchaser from assigning or transferring the Acquired Eligible Receivables. Subject to the terms of the Participation Letter, the Purchaser may at any time, without the consent of, or notice to, any Seller, the Sellers Agent or Servicer, sell participations to Eligible Participants (each, a “Participant”) in all or a portion of the Purchaser’s rights and/or obligations under 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 material respect 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 the Purchaser pursuant to this 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 3045 days prior written notice to Purchaser and effective on a Monthly Date (and during such 3045 day period such Eligible Obligor Limit will automatically and without further notice to or consent of its representationsSeller, warrantiesthe Sellers Agent or Servicer, covenants or and notwithstanding any other agreements contained in provision of this Agreement, which breach cannot equal the then outstanding principal amount of the Acquired Eligible Receivables due from the related Eligible Obligor Group on the date such notice is delivered) and (y) (I) on such Monthly Date of 4855-7613-32454864-7968-1754, v.107 effectiveness, the Eligible Obligor Limit for such Eligible Obligor Group shall automatically and without further notice to or consent of Seller, the 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 been cured within ten Business Days after intend to comply with its funding obligations, has failed to confirm in writing that it intends to comply with its funding obligation by the giving date requested by the Purchaser in writing following the Purchaser’s determination that it has a reasonable basis to believe that such ▇▇▇▇▇▇▇▇ Participant will not comply with its funding obligations, or is the subject of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(ea Bankruptcy) or Section 7.1(f) would not be satisfied at the time of such breach; (ii) if there shall have occurred directed the Purchaser to reduce the Eligible Obligor Limit for any Material Adverse Effect or any development thatEligible Obligor Group, insofar as reasonably can be foreseenthen Sellers Agent may, is reasonably likely in its sole discretion, notify the Purchaser that it wishes Purchaser to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that terminate the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of participation agreement with such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court Eligible Participant in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board terms of Directors determines in good faith, after consultation with outside counselthe related participation agreement, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive Purchaser will so terminate such agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or Commitment shall be reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Caseamount of such Eligible Participant’s maximum participation amount.

By Purchaser. (i) if If prior to Closing, there occurs a Purchaser's Default, then Seller shall have breached in any material respect any be entitled: (a) to terminate its obligations to sell and Purchaser's obligation to purchase the Loan Documents and Claims, Rights and Benefits and not to proceed with Closing, whereupon Seller shall be entitled to retain the ▇▇▇▇▇▇▇ Money as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), as liquidated damages for Purchaser's breach of its representations, warranties, covenants or other agreements contained in purchase obligations under this Agreement; or (b) to proceed to Closing and in the event Closing occurs, which breach cannot be or has not been cured within ten Business Days after to the giving of written notice by Purchaser to Seller specifying such breach rights and so that the conditions remedies set forth in Section 7.1(e) or Section 7.1(f) would 7.3. Further, in the event Seller elects not be satisfied at to proceed to Closing and retain the time ▇▇▇▇▇▇▇ Money as provided herein, and because the actual damages suffered by Seller as a result of such breach; breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees that the amount of the ▇▇▇▇▇▇▇ Money is a reasonable estimate of damages to which Seller is entitled in such event and that the amount of such liquidated damages does not constitute a penalty. Upon the election of Seller to retain the ▇▇▇▇▇▇▇ Money pursuant to (iia) if there above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive termination), and the parties shall have occurred no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any Material Adverse Effect of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the ▇▇▇▇▇▇▇ Money (or attempts to do any development thatof the foregoing), insofar as reasonably can then Seller shall be foreseen, is reasonably likely entitled to result in recover any Material Adverse Effect; additional actual damages (iiiexcluding "lost profits," special and consequential damages) if Purchaser shall have determined that the conditions to arising from Purchaser's obligations hereunder set forth breach (including reasonable attorney's fees and expenses (whether incurred in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory connection with nonjudicial action, prior to Purchasertrial, whether at trial or not on appeal or review, including any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization proceedings under the Bankruptcy Code filed with Code)), in addition to retaining the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Case▇▇▇▇▇▇▇ Money.

By Purchaser. (i) if any Seller shall have breached in any material respect any of its representationsrepresentation, warrantieswarranty, covenants covenant or other agreements agreement contained in this Agreement, which breach cannot be or has not been cured within ten Business Days after the giving of written notice by Purchaser to Seller specifying Agreement and such breach and so that would give rise to the conditions failure of a condition set forth in Section 7.1(eARTICLE VI, unless such breach is fully cured (i.e., neither the breach, the circumstances relating thereto nor the cure thereof will have a continuing effect on the business of the Company and its Subsidiaries after the Closing) or Section 7.1(f) would not be satisfied at the time expense of such breach;Sellers and to the complete satisfaction of Purchaser on or before the Closing Date. (ii) if there any Seller shall have occurred breached any Material Adverse Effect representation or warranty contained in this Agreement which would give rise to the failure of a condition set forth in ARTICLE VI and such breach objectively can not reasonably be cured to the complete satisfaction of Purchaser by Sellers’ using their best efforts before the Closing Date, unless (x) Seller has, together with the additional disclosure relating to such breach provided pursuant to Section 5.6, provided a detailed calculation of the estimated Purchaser Losses that can reasonably be anticipated might arise from such breach and Purchaser has agreed in good faith with such estimate, (y) such breach can be cured by monetary relief (i.e., neither the breach, the circumstances relating thereto nor the cure thereof will have a continuing effect on the business of the Company and its Subsidiaries after the Closing) and (z) the Sellers agree to specifically indemnify Purchaser in accordance with ARTICLE VIII for any development thatPurchaser Loss resulting from such breach, insofar such indemnification not being subject to the limitations set forth in Section 8.2, and either (1) the estimated Purchaser Loss agreed by Sellers and Purchaser as reasonably can required to be foreseen, payable in respect of such breach (without giving effect to the limitations set forth in Section 8.2) does not exceed five hundred thousand euros (€500,000); or (2) the estimated Purchaser Loss agreed by Sellers and Purchaser as reasonably required to be payable in respect of such breach (without giving effect to the limitations set forth in Section 8.2) exceeds five hundred thousand euros (€500,000) but is reasonably likely less than five million euros (€5,000,000) and the Sellers and Purchaser agree to result decrease the cash to be paid at Closing pursuant to Section 1.4(a) and Section 1.4(c) (and agree to revised allocation of the Cash Portion in any Material Adverse Effect;a revised Exhibit 1.3(b) and 1.3(d) and to increase the Escrow Amount payable pursuant to Section 1.4(f) in each case by the total amount of the agreed estimated Purchaser Loss without giving effect to the limitations set forth in ARTICLE VIII (the “Escrow Amount Increase”). (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaserafter January 18, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets; (iv) 2006 if the Bankruptcy Court has Closing shall not entered the Bidding Procedures Order by November 2have occurred on or prior to January 18, 2001; (v) 2006, and if the Bankruptcy Court has failure of the Closing to occur is not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become result of a Final Order breach of a representation, warranty or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than covenant by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Case.

By Purchaser. Purchaser hereby represents and warrants to AER: (i) if Seller shall have breached this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in any material respect any accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of its representations, warranties, covenants or other agreements contained the courts in this Agreement, which breach cannot be or has not been cured within ten Business Days after the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time of such breachgranting equitable remedies; (ii) if there shall have occurred Purchaser will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Securities, and it will not make any Material Adverse Effect sale, transfer, or other disposition of the Securities in violation of the Securities Act or any development thatapplicable state securities laws (the "State Acts"). There will be placed on the Warrant and any certificates for the Shares, insofar as reasonably can be foreseenthe Conversion Shares and the Warrant Shares, is reasonably likely to result a legend stating in any Material Adverse Effect;substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION. (iii) Purchaser, in offering to subscribe for the Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to the date hereof, been given access to and the opportunity to examine data and information relating to AER. In making its investment decision to purchase the Securities, Purchaser shall have determined that the conditions to Purchaser's obligations hereunder is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in Section 7.1(c) are not capable this Agreement. Without limiting the foregoing, Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 2001. Purchaser is an "accredited investor" as defined in Rule 501 of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action Regulation D under the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser of such Assets;Securities Act. (iv) if Purchaser understands and acknowledges that an investment in the Bankruptcy Court Securities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, which Purchaser acknowledges are currently illiquid and may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to AER that Purchaser has not entered adequate means of providing for Purchaser's current needs and contingencies, that Purchaser is able to afford to hold the Bidding Procedures Order by November 2Securities for an indefinite period and that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of the investment in the Securities. Further, 2001;Purchaser represents that Purchaser has no present need for liquidity in the Securities and Purchaser is willing to accept such investment risks. (v) if Purchaser understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon or made any recommendation or endorsement of AER or the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date;Securities. (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revokedThis Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and covenants made in this Section 3(b), rescinded or modified in any material respect;which reliance by its execution of this Agreement Purchaser hereby confirms. (vii) if Purchaser understands that the Asset Purchase Agreement Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to exemptions therefrom based in part upon the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order;representations of Purchaser contained herein. (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c);knows of no public solicitation or advertisement of an offer in connection with the proposed issuance and sale of the Securities. (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply Purchaser has reviewed with its fiduciary duties under Applicable Lawtax advisors the U.S. federal, it state, local and foreign tax consequences of an investment in the Securities and the transactions contemplated by this Agreement. Purchaser is required to enter into relying solely on such advisors and not on any statements or representations of AER or any of its agents and understands that Purchaser (and not AER) shall be responsible for Purchaser's own tax liability that may arise as a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction;result of this investment or the transactions contemplated by this Agreement. (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an 's acquisition of the Acquired Assets by Purchaser on Securities is not a transaction (or any element of a series of transactions) that is a part of a plan or scheme to evade the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 registration provisions of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Case, or if the periods of exclusivity under Sections 1121(b) and 1121(c) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy CaseSecurities Act.

By Purchaser. Purchaser agrees to indemnify and hold harmless Seller and its affiliates, and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the “Seller Indemnified Persons”) from and against any and all claims, losses, damages, liabilities, expenses or costs (“Losses”), plus reasonable attorneys’ fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or in connection with (i) if the breach of any representation or warranty contained herein or in any certificate or other document delivered to Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser to perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of facts which constitutes a breach of any representation or warranty contained in Section 5 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser under this Section 9.2, then Seller shall control the contest, defense, settlement or compromise of any such claim (including the engagement of counsel in connection therewith), at Purchaser’s cost and expense, including the cost and expense of reasonable attorneys’ fees in connection with such contest, defense, settlement or compromise, and Seller shall have breached the right to participate in the contest, defense, settlement or compromise of any material respect such claim at its own cost and expense, including the cost and expense of reasonable attorneys’ fees in connection with such participation; provided, however, that Seller shall not settle or compromise any such claim without the prior written consent of its representations, warranties, covenants or other agreements contained in this AgreementPurchaser, which breach canconsent shall not be unreasonably withheld or has not been cured within ten Business Days after delayed. If Purchaser fails to assume the giving of written notice by Purchaser to Seller specifying such breach and so that the conditions set forth in Section 7.1(e) or Section 7.1(f) would not be satisfied at the time defense of such breach; (ii) if there shall have occurred any Material Adverse Effect or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable claim within 30 days of being satisfied upon terms reasonably satisfactory to Purchaser, whether or not any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser receipt of notice of such Assets; (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001; (v) if the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Order; (viii) if Seller gives written notice to Purchaser that it is unable to obtain a consent required by Section 7.1(c); (ix) if Seller's Board of Directors determines in good faith, after consultation with outside counsel, and evidenced by a duly adopted board resolution, that, in order to comply with its fiduciary duties under Applicable Law, it is required to enter into a definitive agreement with respect to an Alternative Transaction and Seller executes and delivers such a definitive agreement with respect to an Alternative Transaction; (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than by Purchaser; (xi) if there has been a Default or Event of Default (as such terms are defined in the Loan Agreement) under the Loan Agreement; (xii) if Seller becomes a proponent or co- proponent of any plan of reorganization under the Bankruptcy Code filed with the Bankruptcy Court which does not contemplate an acquisition of the Acquired Assets by Purchaser on the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code or is dismissed, if a trustee is appointed in Seller's Bankruptcy Caseclaim, or if at any time Purchaser shall fail to defend in good faith any such claim, Seller may assume the periods defense thereof and may employ counsel with respect thereto and all fees and expenses of exclusivity under Sections 1121(b) such counsel shall be paid by Purchaser, and 1121(c) Seller may conduct and defend such claim in such manner as it may deem appropriate; provided, however, that Seller shall not settle or compromise any such claim without the prior written consent of the Bankruptcy Code are terminated Purchaser, which consent shall not be unreasonably withheld or reduced by the Bankruptcy Court pursuant to Section 1121(d) in Seller's Bankruptcy Casedelayed.