exercised against Seller, such
rights and remedies shall constitute an administrative expense under section
507(a)(1) of the Bankruptcy Code; it being further acknowledged and agreed that
Buyer shall exercise its rights and remedies with respect to any matter relating
to Incremental Transfer Taxes pursuant to Section 5.7(c), first, against the
Transfer Tax Escrow Account and, to the extent the Transfer Tax Escrow Account
is not sufficient, in its sole discretion against the Escrow Account and/or the
Seller and, to the extent exercised against Seller, such rights and remedies
shall constitute an administrative expense under section 507(a)(1) of the
Bankruptcy Code.
ARTICLE VIII
TERMINATION
SECTION 8.1
TERMINATION BY MUTUAL CONSENT. THIS AGREEMENT MAY BE
TERMINATED AT ANY TIME PRIOR TO THE CLOSING BY MUTUAL WRITTEN AGREEMENT OF
SELLER AND BUYER.
SECTION 8.2
TERMINATION BY EITHER BUYER OR SELLER. THIS AGREEMENT MAY
BE TERMINATED AT ANY TIME PRIOR TO THE CLOSING BY BUYER OR SELLER, BY GIVING
WRITTEN NOTICE OF TERMINATION TO THE OTHER PARTY, IF (A) SUBJECT TO
SECTION 2.8(B), THE CLOSING SHALL NOT HAVE OCCURRED ON OR BEFORE JULY 31, 2006
(THE "OUTSIDE DATE") SO LONG AS THE PARTY PROPOSING TO TERMINATE HAS NOT
BREACHED IN ANY MATERIAL RESPECT ANY OF ITS REPRESENTATIONS, WARRANTIES,
COVENANTS OR OTHER AGREEMENTS UNDER THIS AGREEMENT IN ANY MANNER THAT SHALL HAVE
PROXIMATELY CONTRIBUTED TO THE FAILURE OF THE CLOSING TO SO OCCUR (SUCH
BREACHING PARTY, A "PROXIMATE CAUSE PARTY"); PROVIDED, HOWEVER, THAT IF ANY
GOVERNMENT ANTITRUST ENTITY HAS NOT COMPLETED ITS REVIEW OF THE TRANSACTION OR
THE TRANSACTIONS CONTEMPLATED BY THE FRIENDCO PURCHASE AGREEMENT BY SUCH TIME,
OR EITHER PARTY DETERMINES IN GOOD FAITH AT SUCH TIME THAT ADDITIONAL TIME IS
NECESSARY IN ORDER TO FORESTALL ANY ACTION TO RESTRAIN, ENJOIN OR PROHIBIT THE
TRANSACTION OR THE TRANSACTIONS CONTEMPLATED BY THE FRIENDCO PURCHASE AGREEMENT
BY ANY GOVERNMENT ANTITRUST ENTITY, AND, IN EITHER SUCH CASE, ALL CONDITIONS SET
FORTH IN ARTICLE VI (OTHER THAN SECTION 6.1(D)) HAVE BEEN SATISFIED OR WAIVED IN
WRITING BY THE PARTY ENTITLED TO THE BENEFIT THEREOF OR ARE IMMEDIATELY CAPABLE
OF BEING SATISFIED, THEN IN EITHER SUCH CASE, SUCH DATE MAY BE EXTENDED BY
EITHER PARTY TO A DATE NOT BEYOND OCTOBER 31, 2006 (THE "EXTENDED OUTSIDE
DATE"); PROVIDED, FURTHER, THAT IF THE CLOSING HAS NOT OCCURRED BY SUCH DATE AS
A RESULT OF THE FAILURE TO SATISFY SECTION 6.1(I) BY REASON OF ACTIONS BY, OR
FAILURE TO OBTAIN GOVERNMENTAL AUTHORIZATIONS FROM, ANY GOVERNMENTAL ANTITRUST
ENTITY OR THE FCC, THEN SUCH DATE SHALL BE EXTENDED FOR AN ADDITIONAL SIX MONTHS
FOLLOWING THE DATE THAT THE EXTENDED OUTSIDE DATE WOULD OTHERWISE OCCUR OR
(B) ANY LAW (OTHER THAN AN ORDER, JUDGMENT OR RULING CONTEMPLATED BY
SECTION 8.3(D)(II) OR 8.4(C)(II)) PERMANENTLY RESTRAINING, ENJOINING OR
OTHERWISE PROHIBITING CONSUMMATION OF THE TRANSACTION SHALL BECOME FINAL AND
NON-APPEALABLE.
SECTION 8.3
TERMINATION BY SELLER. THIS AGREEMENT MAY BE TERMINATED AT
ANY TIME PRIOR TO THE CLOSING BY SELLER, BY WRITTEN NOTICE TO BUYER:
143
(A)
PRIOR TO THE COMMENCEMENT OF THE CONFIRMATION HEARING[,] ON
MAY