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that is 50 days after the Petition Date; (vi) if the Sale Order has not become a Final Order or if the Sale Order has been revoked, rescinded or modified in any material respect; (vii) if the Asset Purchase Agreement and the Transactions are not approved by the Bankruptcy Court in accordance with the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. (i) if Seller Company shall have breached in any material respect or failed to perform any of its representations, warranties, covenants or other agreements contained 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 within ten Business Days or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice by Purchaser to Seller specifying Company of 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;failure; or (ii) if there shall have occurred any Material Adverse Effect Company or the Company Board (or any development thatcommittee thereof) has (A) approved, insofar as reasonably can be foreseenadopted, is reasonably likely endorsed or recommended any Company Acquisition Proposal, (B) failed to result 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 Material Adverse Effect;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 shall have determined or a Subsidiary thereof), and the Company Board recommends that the conditions to Purchaser's obligations hereunder set forth shareholders of the Company tender their shares in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether such tender 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 exchange offer or otherwise prohibits fails to recommend that such shareholders reject such tender offer or exchange offer within the acquisition by Purchaser of such Assets;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 Bankruptcy Court 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 not entered the Bidding Procedures Order by November 2, 2001;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 Bankruptcy Court has not entered nature of the Sale Order by matter or matters constituting such Company Material Adverse Effect and which are the date basis of such intention; provided, however, that the right to terminate 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 specified 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 such notice to Purchaser that it of intention shall itself terminate unless notice of termination 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 given by Purchaser on within fifteen (15) days following the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 end of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code such remedial 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 Casecurative period.

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. (i) following the Outside Date if Seller 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 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 other agreements contained in this Agreement, Agreement which breach or failure to perform (A) would give rise to the failure of a condition set forth in Exhibit A, and (B) cannot be or has not been cured within ten Business Days (10) 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 Company of such breach; (ii) if there shall have occurred any Material Adverse Effect or any development that; provided, insofar as reasonably can be foreseenhowever, is reasonably likely to result in any Material Adverse Effect; (iii) if Purchaser shall have determined that the conditions right to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory terminate this Agreement pursuant 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; this clause (iv) shall not be available to Purchaser if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2Purchaser is in material breach of any representation, 2001;warranty or covenant contained in this Agreement; or (v) if prior to the Bankruptcy Court has not entered first acceptance of shares of Company Common Stock for payment pursuant to the Sale Order by Offer the date 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 is 50 days after they accept the Petition Date;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 Sale Order has not become Company Board or an Independent Committee authorized to evaluate a Final Order tender offer proposed by a party other than Purchaser, expresses no opinion, remains neutral or if the Sale Order has been revoked, rescinded or modified in any material respect;is unable to take a position with respect to such tender offer; or (vii) if the Asset Purchase Agreement a Material Adverse Effect has occurred and the Transactions are not approved by the Bankruptcy Court in accordance with the Sale Orderis continuing; (viii) if Seller gives written notice 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 connection with the acquisition of Shares by Purchaser or any of the transactions related thereto or seeking to Purchaser that it is unable to obtain a consent required by Section 7.1(c)restrain or prohibit the making or consummation of the Offer or Share Exchange; (ix) if Sellerthe Financing Condition is not met by the Outside Date and the failure of such condition does not result from either (A) the existence of a material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Company, (B) the Company's Board failure to fulfill any of Directors determines in good faithits obligations under this Agreement or from facts or circumstances that constitute a breach of any representation or warranty under this Agreement by the Company, after consultation with outside counsel(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, and evidenced by a duly adopted board resolution, that, in order or (D) the failure 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;satisfy the Minimum Tender Condition; or (x) if the Bankruptcy Court enters an order that contemplates a Business Combination other than Financing Condition is not met by Purchaser; (xi) if there has been a Default the Outside Date and the failure of such condition results from one 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 more of the Acquired Assets by Purchaser on the terms reasons set forth herein; or in clauses (xiiiA) 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(cthru (D) of the Bankruptcy Code are terminated or reduced by the Bankruptcy Court pursuant to Section 1121(d8(c)(ix) in Seller's Bankruptcy Caseabove.

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. (i) if Seller Company shall have breached in any material respect or failed to perform any of its representations, warranties, covenants or other agreements contained 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 within ten Business Days or has not been waived by the earlier of (1) the Outside Date and (2) 30 days after the giving of written notice by Purchaser to Seller specifying Company of 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;failure; or (ii) if there shall have occurred any Material Adverse Effect Company or the Company Board (or any development thatcommittee thereof) has (A) effected a Company Adverse Recommendation Change or approved, insofar as reasonably can be foreseenadopted, is reasonably likely endorsed or recommended any Company Acquisition Proposal, (B) failed to result 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 Material Adverse Effect;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 shall have determined or a Subsidiary thereof), and the Company Board recommends that the conditions to Purchaser's obligations hereunder set forth shareholders of the Company tender their shares in Section 7.1(c) are not capable of being satisfied upon terms reasonably satisfactory to Purchaser, whether such tender 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 exchange offer or otherwise prohibits fails to recommend that such shareholders reject such tender offer or exchange offer within the acquisition by Purchaser of such Assets;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 Bankruptcy Court 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 (notwithstanding Purchaser’s compliance with Section 5.2), and the time period for appeals and request for reconsideration has not entered the Bidding Procedures Order by November 2, 2001;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 Bankruptcy Court has not entered nature of the Sale Order by matter or matters constituting such Company Material Adverse Effect and which are the date basis of such intention; provided, however, that the right to terminate 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 specified 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 such notice to Purchaser that it of intention shall itself terminate unless notice of termination 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 given by Purchaser on within fifteen (15) days following the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 end of the Bankruptcy Code to a case under Chapter 7 of the Bankruptcy Code such remedial 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 Casecurative period.

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 cured prior to the Termination Date or has not been cured within ten Business Days 30 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 Seller or any development that, insofar as reasonably can be foreseen, is reasonably likely to result in any Material Adverse Effectof its directors or officers shall breach Section 6.6; (iiiA) if Purchaser Seller breaches its obligations under this Agreement by failing to call or hold the stockholders meeting in accordance with Section 6.6, (B) if the Board of Directors of Seller or any committee thereof shall have determined that withdraw or modify, or make any disclosure to the conditions to Purchaser's obligations hereunder set forth in Section 7.1(c) are not capable stockholders of being satisfied upon terms reasonably satisfactory to PurchaserSeller, whether or not permitted pursuant to Section 6.6, that has the effect of withdrawing or modifying, its approval or recommendation of this Agreement, (C) if the Board of Directors of Seller or any Governmental Entity committee thereof shall approve or recommend, or make any disclosure to the stockholders of Seller, whether or not permitted pursuant to Section 6.6, that has the effect of approving or recommending, to the stockholders of Seller an Acquisition Proposal, (D) if, after an Acquisition Proposal shall have issued been made public, the Board of Directors of Seller fails to affirm its recommendation of this Agreement as promptly as practicable (but in any case within 5 Business Days) after any written request from Purchaser or (E) if a tender offer or exchange offer constituting an orderAcquisition Proposal is commenced, decree or ruling or taken any other action (which order, decree, ruling or other action and the parties hereto shall use their reasonable efforts Board of Directors of Seller fails to lift), which restrains, enjoins or otherwise prohibits the acquisition by Purchaser promptly recommend against acceptance of such Assetsoffer by the stockholders of Seller (including by taking no position with respect to the acceptance of such offer by the stockholders of Seller); (iv) if the Bankruptcy Court has not entered the Bidding Procedures Order by November 2, 2001any person shall have consummated a tender offer or an exchange offer or other transaction constituting an Acquisition Proposal; (v) if a condition under Section 8.1 or 8.2 to Purchaser's obligations hereunder is incapable of being satisfied prior to the Bankruptcy Court has not entered the Sale Order by the date that is 50 days after the Petition Termination Date; (vi) at any time prior to the last day of the Due Diligence Period if the Sale Order has it is not become a Final Order or if the Sale Order has been revokedsatisfied, rescinded or modified in any material respect;its sole discretion, with its due diligence investigation; or (vii) if the Asset Purchase Board of Directors of Purchaser shall not have approved this 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 consummation of the Acquired Assets by Transaction at the 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 CaseBoard Meeting.

By Purchaser. (i) if Seller the Sellers shall have breached in any material respect any of its their representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within ten Business Days 30 days after the giving of written notice by Purchaser to Seller the Sellers 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) on or after July 31, 2003, if there 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 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 Material Adverse Effect period during which consummation of the Transactions is prohibited pursuant to an injunction or any development that, insofar restraint issued by a court of competent jurisdiction; PROVIDED FURTHER that such date shall be extended as reasonably can be foreseen, necessary if a notice is reasonably likely given by Purchaser to result in any Material Adverse Effect;the Sellers pursuant to Section 5.5(e) hereof within 10 Business Days prior to the Closing Date. (iii) if Purchaser either of the Sellers shall have determined that the conditions 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'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;; or (iv) if on or prior to 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 expiration of 23 calendar days after the Petition Date; (vi) if the Sale Order has not become delivery to Purchaser of a Final Order or if the Sale Order has been revokedFirst Notice, rescinded or modified Sylvan fails to confirm 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 writing 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 discontinued discussions with the Bankruptcy Court which does not contemplate an acquisition of Person(s) who made the Acquired Assets by Purchaser on Acquisition Proposal that triggered the terms set forth herein; or (xiii) if Seller's Bankruptcy Case is converted from a case under Chapter 11 of First Notice and that it intends to consummate 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 CaseTransactions.