Article 38 TERM OF AGREEMENT

38.1 Expiration Date.

Except as provided in Section 2 of this Article XXXVIII and otherwise expressly provided herein, this Agreement shall be effective from September 18, 1995 and shall continue in full force and effect through June 30, 2001.

38.2 Termination by NBA.

If with respect to the 1997-98 NBA season, or any Season thereafter during the term of this Agreement, it is determined (as provided for in Section 2(b) of this Article XXXVIII) that the NBA has paid or will be obligated to pay Total Salaries and Benefits in an amount that exceeds 51.8% of Projected BRI for such Season (i.e., the BRI previously projected for purposes of calculating the Salary Cap for such Season), the NBA shall have the right to terminate this Agreement (effective as of the June 30 following such Season) by giving written notice of such termination to the Players Association. For the purposes of this Section 2, Projected BRI shall include the amounts determined in accordance with Article VII, Sections l(a)(6)(i) and (ii) and, for the 1997-98 Salary Cap Year, an additional $36 million, and shall not include (for any Salary Cap Year) the amounts determined in accordance with Article VII, Section 1(a)(6)(iii).
The determination provided for by Section 2(a) shall be made as follows:
1. On or before April 1 of the 1997-98 NBA season, and on or before April 1 of any Season that may thereafter be covered by this Agreement, the NBA will provide the Accountants with the best data then available as to the amounts the NBA has paid or estimates it will be obligated to pay in Salaries and Benefits with respect to such Season.
2. In accordance with such procedures as it determines are reasonable under the circumstances, the Accountants shall review the data provided by the NBA for the purpose of determining whether the NBA has paid or will be obligated to pay Total Salaries and Benefits in an amount that exceeds 51.8% of Projected BRI for the Season in question; and the NBA, and NBA Teams shall cooperate in all reasonable respects with the Accountants’ conduct of such audit.
3. At the earliest possible time, but in no event later than the April 30 immediately following its receipt of the information provided by the NBA, the Accountants shall notify the NBA and the Players Association in writing whether or not the NBA has paid or will be obligated to pay Total Salaries and Benefits in an amount that exceeds 51.8% of Projected BRI for the Season in question and shall provide the NBA and the Players Association with the information and calculations on which that determination is based.
4. The NBA shall have the right to terminate this Agreement by giving the notice provided for by Section 2(a): (A) If the Accountants determine that the NBA has paid or will pay Total Salaries and Benefits in an amount that exceeds 51.8% of Projected BRI for the Season in question; or (B) If the Accountants fail to furnish the notice provided for by Section 2(b )(iii) by the date provided for by that Section and the NBA reasonably believes that it has paid or will be obligated to pay Total Salaries and Benefits in an amount that exceeds 51. 8 % of Projected BRI for the Season in question.
If the Players Association elects to dispute the determination made by the Accountants or the NBA that the NBA has paid or will be obligated to pay Total Salaries and Benefits in an amount that exceeds 51.8 % of Projected BRI for the Season in question, it shall so notify the NBA in writing within two business days from the date upon which the NBA has given the notice provided for by Section 2(a).
Any and all disputes concerning the determination made by the Accountants or the NBA shall be resolved exclusively by the System Arbitrator (subject to review by the Appeals Panel) in the manner provided for an enforcement proceeding pursuant to Article XXXII.
If the System Arbitrator or the Appeals Panel, as the case may be, concludes that the NBA has not paid or will not be obligated to pay Total Salaries and Benefits in an amount that exceeds 51.8% of Projected BRI for the Season in question, the only relief to which the Players Association shall be entitled shall be (i) a declaration that the NBA did not have the right to terminate this Agreement and/or that its termination thereof was not effective and (ii) an order directing the NBA to rescind its notice of termination and resume performance pursuant to this Agreement. In no event shall the System Arbitrator or the Appeals Panel, in a proceeding brought pursuant to this Article, have the jurisdiction or authority to issue any other form of declaratory or equitable or injunctive relief or to award damages of any kind.

38.3 Termination by Players Association.

In the event the conditions of Article XIV, Section 16 are satisfied, the Players Association shall have the right to terminate this Agreement. To execute such a termination, the Players Association may serve upon the NBA written notice of termination within thirty (30) days after the System Arbitrator’s report finding the requisite conditions (pursuant to Article XIV, Section 16) becomes final and any appeals therefrom have been exhausted. In the absence of a System Arbitrator, the Players Association shall have the option to execute such a termination by serving upon the NBA written notice of such termination within thirty (30) days after any decision by a court finding the requisite conditions (pursuant to Article XIV, Section 16). In the latter situation, if the finding of the court is reversed on appeal, the Agreement shall be immediately reinstated and both parties reserve their rights with respect to any conduct by the other party during the period from the termination notice to the date upon which the Agreement was reinstated.

38.4 Mutual Right of Termination.

If at any time during the term of this Agreement any provision contained in Article VII, X, XI and XIV of this Agreement is enjoined, vacated, declared null and void or is rendered unenforceable by any court of competent jurisdiction, then either the NBA or the Players Association shall have the right to terminate this Agreement by serving upon the other party written notice of termination within thirty (30) days.

38.5 No Waiver.

The failure of the NBA or the Players Association to exercise its right to terminate this Agreement with respect to any playing season in accordance with this Article shall not be deemed a waiver of or in any way impair or prejudice the NBA or the Players Association’s right, if any, to terminate this Agreement in accordance with this Article with respect to any succeeding season.