NON TERMINATING PARTY IS NOT THEN IN DEFAULT OR BREACH OF ANY OF ITS
OBLIGATIONS UNDER SECTION 5.3, SUCH DATE SHALL AUTOMATICALLY BE EXTENDED TO JULY
2, 2004;
(C)
[INTENTIONALLY OMITTED.]
(D)
BY THE BUYER, UPON WRITTEN NOTICE TO THE
SELLER AT ANY TIME PRIOR TO CLOSING, IF (I) THE SELLER HAS GIVEN THE BUYER
NOTICE PURSUANT TO SECTION 5.12 ABOVE, (II) THE BREACH THAT IS THE SUBJECT OF
SUCH NOTICE RESULTS IN A FAILURE TO SATISFY THE CONDITIONS SET FORTH IN
SECTION 7.3(A) OR SECTION 7.3(G), AND (III) THE BREACH HAS NOT BEEN CURED (SUCH
THAT SUCH CONDITIONS ARE SATISFIED) WITHIN 45 DAYS AFTER THE SELLER FIRST
OBTAINED ACTUAL KNOWLEDGE OF THE BREACH; OR
(E)
BY EITHER THE BUYER OR THE SELLER, WITHOUT
CAUSE, BY WRITTEN NOTICE TO THE OTHER PARTY GIVEN AT ANY TIME PRIOR TO ANY OTHER
TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS AND PAYMENT OF THE
TERMINATION FEE SET FORTH IN SECTION 10.2(A).
10.2
Termination Fee.
(A)
IF EITHER PARTY TERMINATES THIS AGREEMENT
PURSUANT TO SECTION 10.1(E), THEN THE TERMINATING PARTY SHALL PAY THE
NON-TERMINATING PARTY A TERMINATION FEE OF $20 MILLION IF THE TERMINATING PARTY
TERMINATES THIS AGREEMENT ON OR PRIOR TO DECEMBER 31, 2003 AND $15 MILLION IF
THE TERMINATING PARTY TERMINATES THIS AGREEMENT AFTER DECEMBER 31, 2003 (THE
"TERMINATION
69
Fee"), which Termination Fee shall be paid not later than two (2) business days
after delivery of the notice set forth in Section 10.1(e) by wire transfer of
immediately available funds to an account designated by the non-terminating
party.
(B)
ANY PARTY ENTITLED TO RECEIVE PAYMENT OF THE
TERMINATION FEE PURSUANT TO SECTION 10.2(A) HEREBY AGREES THAT SUCH PAYMENT IS
INTENDED TO AND SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND RECOVERY OF SUCH
PARTY AND ITS AFFILIATES (AND IS IN LIEU OF ANY OTHER RIGHTS OR REMEDIES
AVAILABLE TO SUCH PARTY AND ITS AFFILIATES, INCLUDING WITHOUT LIMITATION, FOR
ANY RECOVERY OF DAMAGES OR OTHERWISE) ON ACCOUNT OF OR RELATING TO THE
TERMINATION OF THIS AGREEMENT BY THE TERMINATING PARTY, INCLUDING WITHOUT
LIMITATION FOR ANY LOSSES ARISING OUT OF OR RELATING TO OR BASED UPON ANY OF THE
CIRCUMSTANCES OF SUCH TERMINATION.
10.3
Effect of Termination.
In the event of any
termination of the Agreement as provided in Section 10.1 above:
(A)
THIS AGREEMENT SHALL FORTHWITH BECOME
WHOLLY VOID AND OF NO FURTHER FORCE AND EFFECT AND THERE SHALL BE NO LIABILITY
ON THE PART OF THE BUYER AND THE SELLER, EXCEPT THAT (I) THE OBLIGATIONS OF THE
BUYER AND THE SELLER UNDER SECTIONS 5.1(C) AND 5.3(D) AND ARTICLE X AND
ARTICLE XII OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT INCLUDING
WITHOUT LIMITATION THE OBLIGATION OF EITHER PARTY TO PAY THE TERMINATION FEE
PURSUANT TO SECTION 10.2(A) (WHICH SUCH OBLIGATION SHALL REMAIN IN FULL FORCE
AND EFFECT UNTIL SUCH AMOUNT IS FULLY PAID) AND (II) SUBJECT TO SECTION 10.2(B),
SUCH TERMINATION SHALL NOT PRECLUDE EITHER PARTY FROM BRINGING ANY ACTION
AGAINST THE OTHER PARTY FOR ANY