SENTENCE SECTION 10.2
HEREOF, AS THE CASE MAY BE, WILL NOT BE SATISFIED;
(D)
BY THE SELLER, IF LEVEL 3 OR THE BUYER HAS
BREACHED SECTION 6.8 OF THIS AGREEMENT SUCH THAT THE CONDITION SET FORTH IN
SECTION 10.1 WOULD NOT BE SATISFIED AND HAS NOT GIVEN WRITTEN NOTICE TO THE
SELLER OF THE BUYER'S IRREVOCABLE ELECTION TO EXERCISE THE CASH SUBSTITUTION
RIGHT IN FULL IN ACCORDANCE WITH SECTION 2.2 OF THIS AGREEMENT WITHIN 10
BUSINESS DAYS AFTER THE SELLER HAS GIVEN WRITTEN NOTICE TO THE BUYER OF ITS
INTENT TO TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 12.1(D) (PROVIDED,
THAT THE SELLER AND LEUCADIA ARE NOT THEN IN MATERIAL BREACH OF THE TERMS OF
THIS AGREEMENT);
(E)
BY THE SELLER OR THE BUYER IF:
(I) THERE
SHALL BE A FINAL, NON-APPEALABLE ORDER OF A FEDERAL OR STATE COURT IN EFFECT
PREVENTING CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY; OR (II) THERE
SHALL BE ENACTED ANY FEDERAL OR STATE STATUTE WHICH WOULD MAKE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY ILLEGAL; OR
61
(F)
BY THE SELLER OR THE BUYER IF THE CLOSING
SHALL NOT HAVE BEEN CONSUMMATED BY MAY 1, 2006; PROVIDED THAT THE BUYER OR THE
SELLER MAY EXTEND SUCH DATE BY ONE (1) ADDITIONAL MONTH IF THE CONDITION SET
FORTH IN SECTION 11.3 IS THE ONLY CONDITION REMAINING TO BE SATISFIED ON SUCH
DATE (OTHER THAN THOSE CONDITIONS THAT ARE ONLY CAPABLE OF BEING SATISFIED ON
THE CLOSING) AND SUCH PARTY REASONABLY BELIEVES IN GOOD FAITH THAT SUCH
CONDITION IS LIKELY TO BE SATISFIED WITHIN SUCH ADDITIONAL ONE-MONTH PERIOD; AND
PROVIDED FURTHER THAT THE RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS
SECTION 12.1(F) SHALL NOT BE AVAILABLE TO ANY PARTY WHOSE FAILURE TO FULFILL ANY
MATERIAL OBLIGATION UNDER THIS AGREEMENT HAS BEEN BOTH WILLFUL AND THE CAUSE OF,
OR RESULTED IN, THE FAILURE OF THE CLOSING TO OCCUR ON OR BEFORE SUCH DATE.
SECTION 12.2.
EFFECT OF TERMINATION.
IN THE EVENT OF THE TERMINATION OF THIS
AGREEMENT AS PROVIDED IN SECTION 12.1 HEREOF, THIS AGREEMENT SHALL FORTHWITH
BECOME VOID AND THERE SHALL BE NO LIABILITY OR OBLIGATION ON THE PART OF THE
SELLER OR THE BUYER, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, STOCKHOLDERS,
MEMBERS OR OTHER PERSONS UNDER THEIR CONTROL, EXCEPT TO THE EXTENT THAT SUCH
TERMINATION RESULTS FROM THE WILLFUL BREACH BY A PARTY HERETO OF ANY OF ITS
REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS SET FORTH IN THIS
AGREEMENT, AND PROVIDED THAT THE PROVISIONS OF SECTIONS 9.2(B)(II),
SECTION 9.3(B)(II), 12 AND 13, HEREOF AND THE SECOND TO LAST SENTENCE IN
SECTION 7.3 HEREOF SHALL REMAIN IN FULL FORCE AND EFFECT AND SURVIVE ANY
TERMINATION OF THIS AGREEMENT.
SECTION 13.
MISCELLANEOUS.
SECTION 13.1.
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, NO PARTY HERETO SHALL ASSIGN THIS AGREEMENT OR ANY RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES
HERETO AND ANY SUCH ATTEMPTED ASSIGNMENT WITHOUT SUCH PRIOR WRITTEN CONSENT
SHALL BE VOID AND OF NO FORCE AND EFFECT; PROVIDED, HOWEVER,
THAT THE