no event shall a party who has breached or failed
to perform in any material respect any if its representations, warranties or
covenants contained in this Agreement, which breach or failure to perform would
give rise to the failure of, in the case of a breach of failure to perform by
Morgans, a condition set forth in Section 4.1 and, in the case of a breach of
failure to perform by DLJMB, a condition set forth in Section 4.2, to be
satisfied on or before the Outside Date.
8.2.
EFFECT OF TERMINATION.
IN THE EVENT OF TERMINATION OF THIS
AGREEMENT BY EITHER MORGANS OR DLJMB AS SET FORTH ABOVE, THE PROVISIONS OF THIS
AGREEMENT SHALL IMMEDIATELY BECOME VOID AND OF NO FURTHER FORCE AND EFFECT
(OTHER THAN SECTION 7.2, SECTION 8.1, THIS SECTION 8.2, SECTION 8.3, ARTICLE 9
AND ARTICLE 10, WHICH PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT).
8.3.
ESCROW DEPOSITS.
(A)
EACH PARTY ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING DLJMB'S
ENTRY INTO THIS AGREEMENT AND OBLIGATION TO PROVIDE THE DLJMB INITIAL CAPITAL
COMMITMENT, SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DLJMB SHALL
HAVE NO OBLIGATION OR LIABILITY TO ANY PERSON WITH RESPECT TO THE ESCROW
DEPOSITS, INCLUDING WITHOUT LIMITATION ANY OBLIGATION OR LIABILITY TO THE
MORGANS PARTIES AS A RESULT OF ANY FAILURE OF ALL OR ANY PORTION OF THE ESCROW
DEPOSITS TO BE RETURNED OR CREDITED TO THE MORGANS PARTIES.
(B)
NOTWITHSTANDING THE FOREGOING IF (A) THE MERGER AGREEMENT IS
TERMINATED PURSUANT TO SECTION 6.1(E) THEREOF BY THE SELLING PARTIES (OTHER THAN
AS A RESULT OF THE MORGANS PARTIES MATERIAL BREACH OF ANY REPRESENTATION,
COVENANT OR CONDITION OF THE MERGER AGREEMENT) AND (B) PRIOR TO SUCH TERMINATION
BY THE SELLING PARTIES ALL OF THE CONDITIONS SET FORTH IN SECTION 4.1 OF THIS
AGREEMENT TO THE OBLIGATIONS OF DLJMB SHALL HAVE BEEN SATISFIED OR WAIVED BY
DLJMB (EXCEPT FOR THE OCCURRENCE OF THE CLOSING AS REFERENCED IN SECTION
4.1(C)), THEN IN THE EVENT THAT THE FAILURE OF THE CLOSING TO OCCUR ON OR PRIOR
TO THE OUTSIDE DATE (AS DEFINED IN THE MERGER AGREEMENT) WAS:
(I)
PRIMARILY CAUSED BY DLJMB'S BREACH OF ITS MATERIAL OBLIGATIONS
HEREUNDER; OR
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(II)
NOT PRIMARILY CAUSED BY ANY BREACH BY EITHER THE MORGANS PARTIES
OR DLJMB OF THEIR RESPECTIVE MATERIAL OBLIGATIONS HEREUNDER; OR
(III)
ATTRIBUTABLE TO THE ELECTION OF DLJMB TO CAUSE THE MORGANS
PARTIES TO DELIVER THE DLJMB TERMINATION NOTICES TO THE SELLING PARTIES PRIOR TO
THE OUTSIDE DATE, WHICH TERMINATION IS EITHER (A) SENT BY MORGANS AT THE
DIRECTION OF DLJMB WITHOUT THE CONCURRENCE OF MORGANS, OR (B) SENT JOINTLY BY
MORGANS AND DLJMB;
(C)
IF, AS A RESULT OF THE FOREGOING MATTERS DESCRIBED IN SECTION
8.3(B), THE ESCROW DEPOSITS ARE EITHER RELEASED TO THE SELLING PARTIES PURSUANT
TO THE TERMS OF THE MERGER AGREEMENT OR NOT RELEASED TO EITHER THE SELLING
PARTIES OR THE MORGANS PARTIES PENDING THE RESOLUTION OF ANY DISPUTE RELATED
THERETO, THEN, IN EACH CASE, DLJMB SHALL PAY THE BREAK-UP AMOUNT TO MORGANS