TO CONSUMMATE
THE PLAN IN ACCORDANCE WITH THE TERMS OF THE TERM SHEET;
(B)
THE BOARD OF DIRECTORS OF THE COMPANY HAS
DETERMINED IN GOOD FAITH, AFTER CONSULTATION WITH LEGAL COUNSEL, THAT THE TAKING
OF ANY ACTION UNDER THIS AGREEMENT WOULD BE INCONSISTENT WITH ITS APPLICABLE
FIDUCIARY OBLIGATIONS;
(C)
IF THE BANKRUPTCY COURT ENTERS AN ORDER
DENYING THE CONFIRMATION OF THE PLAN; AND
6
(D)
AT 5:00 P.M. EASTERN TIME ON THE 180TH DAY
AFTER THE PLAN FILING DATE IF THE PLAN CONFIRMATION DATE HAS NOT OCCURRED ON OR
PRIOR TO SUCH DATE; PROVIDED, THAT A COMPANY TERMINATION DATE SHALL NOT BE
DEEMED TO HAVE OCCURRED UNDER THIS CLAUSE (D) UNLESS THE COMPANY HAS USED ITS
BEST EFFORTS TO CAUSE THE PLAN CONFIRMATION DATE TO OCCUR ON OR PRIOR TO SUCH
DATE.
5.03.
EFFECT OF AGREEMENT TERMINATION EVENT.
UPON THE
OCCURRENCE OF AN AGREEMENT TERMINATION EVENT, (I) THIS AGREEMENT SHALL BE OF NO
FURTHER FORCE AND EFFECT AND EACH PARTY HERETO SHALL BE RELEASED FROM ITS
COMMITMENTS, UNDERTAKINGS AND AGREEMENTS UNDER OR RELATED TO THIS AGREEMENT AND
THE PLAN AND SHALL HAVE THE RIGHTS AND REMEDIES THAT IT WOULD HAVE HAD IT NOT
ENTERED INTO THIS AGREEMENT, AND SHALL BE ENTITLED TO TAKE ALL ACTIONS, WHETHER
WITH RESPECT TO THE RESTRUCTURING OR OTHERWISE, THAT IT WOULD HAVE BEEN ENTITLED
TO TAKE HAD IT NOT ENTERED INTO THIS AGREEMENT, (II) ANY AND ALL CONSENTS
TENDERED BY THE PARTIES PRIOR TO SUCH TERMINATION SHALL BE DEEMED, FOR ALL
PURPOSES, TO BE NULL AND VOID FROM THE FIRST INSTANCE AND SHALL NOT BE
CONSIDERED OR OTHERWISE USED IN ANY MANNER BY THE PARTIES IN CONNECTION WITH THE
RESTRUCTURING, THIS AGREEMENT, THE PLAN OR OTHERWISE, AND (III) IF BANKRUPTCY
COURT PERMISSION SHALL BE REQUIRED FOR A PARTY TO CHANGE OR WITHDRAW (OR CAUSE
TO BE CHANGED OR WITHDRAWN) ITS VOTE IN FAVOR OF THE PLAN, NO PARTY TO THIS
AGREEMENT SHALL OPPOSE ANY ATTEMPT BY SUCH PARTY TO CHANGE OR WITHDRAW (OR CAUSE
TO BE CHANGED OR WITHDRAWN) SUCH VOTE.
SECTION 6.
MISCELLANEOUS.
6.01.
COMPLETE AGREEMENT.
THIS AGREEMENT IS THE ENTIRE
AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, BETWEEN THE PARTIES WITH
RESPECT THERETO, TO THE MAXIMUM EXTENT THEY RELATE IN ANY WAY TO THE SUBJECT
MATTER HEREOF.
NO CLAIM OF WAIVER, MODIFICATION, CONSENT OR ACQUIESCENCE WITH
RESPECT TO ANY PROVISION OF THIS AGREEMENT SHALL BE MADE AGAINST ANY PARTY,
EXCEPT ON THE BASIS OF A WRITTEN INSTRUMENT EXECUTED BY OR ON BEHALF OF SUCH
PARTY.
6.02.
ADMISSIBILITY OF THIS AGREEMENT.
EACH OF PARTIES
HEREBY AGREES THAT THIS AGREEMENT, THE TERM SHEET AND ALL DOCUMENTS, AGREEMENTS
AND NEGOTIATIONS RELATING THERETO SHALL NOT, PURSUANT TO FEDERAL RULE OF
EVIDENCE 408 AND ANY APPLICABLE STATE RULES OF EVIDENCE, BE ADMISSIBLE INTO
EVIDENCE OR CONSTITUTE AN ADMISSION OR AGREEMENT IN ANY PROCEEDING INVOLVING A
PARTY, OTHER THAN A PROCEEDING TO ENFORCE THE TERMS OF THIS AGREEMENT AND/OR
SUPPORT THE CONFIRMATION OF THE PLAN.
6.03.