CONSULTATION WITH ITS FINANCIAL ADVISORS, IS AT
LEAST AS FAVORABLE TO THE STAKEHOLDERS OF SELLER AS IS THE SUPERIOR ALTERNATE
PLAN (TAKING INTO ACCOUNT, WITHOUT LIMITATION, FINANCIAL TERMS OF ANY
TERMINATION FEE THAT MAY BE PAYABLE PURSUANT TO SECTION 8.5(B) AND THE
LIKELIHOOD OF CONSUMMATION); OR
(D)
IF (I) AT ANY TIME AFTER THE CONCLUSION OF VOTING ON THE PLAN AS
ESTABLISHED BY THE BANKRUPTCY COURT, SELLER'S STAKEHOLDERS WHO ARE ENTITLED TO
VOTE ON THE PLAN VOTE IN SUFFICIENT NUMBER AND AMOUNT AGAINST THE PLAN SUCH THAT
THE PLAN IS NOT
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OTHERWISE CAPABLE OF BEING CONFIRMED BY THE BANKRUPTCY COURT OR (II) SUBJECT TO
COMPLIANCE BY SELLER WITH THE FIRST SENTENCE OF SECTION 5.13(G), AT ANY TIME
AFTER THE EXPIRATION OF 150 DAYS FOLLOWING THE ENTRY OF AN ORDER, JUDGMENT OR
RULING BY A COURT OF COMPETENT JURISDICTION IN THE REORGANIZATION CASE DENYING
ENTRY OF (OR VACATING), OR THAT IS INCONSISTENT WITH THE ENTRY OF, A
CONFIRMATION ORDER SATISFYING THE CONDITION SET FORTH IN SECTION 6.2(G), THE
BANKRUPTCY COURT SHALL NOT HAVE THEREAFTER ENTERED A CONFIRMATION ORDER
SATISFYING THE CONDITION SET FORTH IN SECTION 6.2(G); PROVIDED, HOWEVER, THAT
SELLER MAY ONLY TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 8.3(D)(II) IF
AT SUCH TIME IT WOULD NOT REASONABLY BE EXPECTED THAT A CONFIRMATION ORDER
SATISFYING THE CONDITION SET FORTH IN SECTION 6.2(G) SHALL BE ENTERED PRIOR TO
THE OUTSIDE DATE.
SECTION 8.4
TERMINATION BY BUYER. THIS AGREEMENT MAY BE TERMINATED AT
ANY TIME PRIOR TO THE CLOSING BY BUYER, BY WRITTEN NOTICE TO SELLER:
(A)
IF THERE HAS BEEN A BREACH OF ANY REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT MADE BY SELLER IN THIS AGREEMENT (ASSUMING ENTRY OF THE
CONFIRMATION ORDER) SUCH THAT AN EXECUTIVE OFFICER OF SELLER WOULD BE UNABLE TO
DELIVER THE CLOSING CERTIFICATE TO BUYER REGARDING SELLER'S REPRESENTATIONS AND
WARRANTIES AND SELLER'S PERFORMANCE OF ITS OBLIGATIONS AS REQUIRED PURSUANT TO
SECTION 6.2(A) AND SECTION 6.2(B), RESPECTIVELY, AND SUCH BREACH IS NOT CURABLE
OR, IF CURABLE, IS NOT CURED WITHIN 60 DAYS AFTER WRITTEN NOTICE THEREOF IS
GIVEN BY BUYER TO SELLER; PROVIDED, HOWEVER, THAT IF, WITH RESPECT TO ANY SUCH
BREACH OR CONDITION THAT CANNOT REASONABLY BE EXPECTED TO BE CURED WITHIN 60
DAYS, SELLER IS DILIGENTLY PROCEEDING TO CURE SUCH BREACH, THIS AGREEMENT MAY
NOT BE TERMINATED PURSUANT TO THIS SECTION 8.4(A) FOR SO LONG AS (I) SUCH BREACH
IS REASONABLY LIKELY TO BE CURED PRIOR TO THE DATE ON WHICH THIS AGREEMENT WOULD
OTHERWISE BE TERMINATED UNDER SECTION 8.2 AND (II) SELLER CONTINUES SUCH EFFORTS
TO CURE;
(B)
IF (I) SELLER HAS NOT, BY OCTOBER 15, 2005, FILED ALL MOTIONS
REASONABLY NECESSARY TO OBTAIN THE CONFIRMATION ORDER OR (II) IF THE PROTECTIONS
ORDER IS VACATED OR MODIFIED IN ANY MATERIAL RESPECT FOLLOWING THE DATE HEREOF
(EXCEPT AS MODIFIED PURSUANT TO THE ORDER OF THE BANKRUPTCY COURT ENTERED ON
JUNE 16, 2006);
(C)
IF (I) AT ANY TIME AFTER THE CONCLUSION OF VOTING ON THE PLAN AS
ESTABLISHED BY THE BANKRUPTCY COURT, SELLER'S STAKEHOLDERS WHO ARE