REPRESENTATION,
WARRANTY OR COVENANT OF THE BUYERS CONTAINED IN THIS AGREEMENT SHALL HAVE
OCCURRED, WHICH BREACH (A) WOULD REASONABLY BE EXPECTED TO GIVE RISE TO THE
FAILURE OF A CONDITION SET FORTH IN SECTION 10(C) AND (B) AS A RESULT OF SUCH
BREACH, SUCH CONDITION WOULD NOT REASONABLY BE EXPECTED TO BE SATISFIED PRIOR TO
THE OUTSIDE DATE; PROVIDED THAT, THE COMPANY MAY ONLY TERMINATE THIS AGREEMENT
PURSUANT TO THIS SECTION 12(D)(I) IF THE ALLOCATION PERCENTAGE OF SUCH BREACHING
BUYER OR BUYERS, IN THE AGGREGATE, EXCEEDS 20% OF THE PURCHASE PRICE; OR
(II)
IF THE COMPANY BOARD DETERMINES TO ACCEPT A SUPERIOR PROPOSAL,
BUT ONLY IF THE COMPANY SHALL HAVE COMPLIED IN ALL RESPECTS WITH ITS OBLIGATIONS
UNDER SECTION 4(K) WITH RESPECT TO SUCH SUPERIOR PROPOSAL (AND ANY COMPETING
PROPOSAL THAT WAS A PRECURSOR THERETO) AND IS OTHERWISE PERMITTED TO ACCEPT SUCH
SUPERIOR PROPOSAL PURSUANT TO SECTION 4(K)(IV); PROVIDED, HOWEVER, THAT THE
COMPANY SHALL NOT TERMINATE THIS AGREEMENT PURSUANT TO THIS PARAGRAPH, AND ANY
PURPORTED TERMINATION PURSUANT TO THIS PARAGRAPH SHALL BE VOID AND OF NO FORCE
OR EFFECT, UNLESS IN ADVANCE OF OR CONCURRENTLY WITH SUCH TERMINATION THE
COMPANY ENTERS INTO THE ALTERNATIVE ACQUISITION AGREEMENT
50
AND THE COMPANY PAYS THE TERMINATION FEE AND THE EXPENSES IN THE MANNER PROVIDED
FOR IN SECTION 12(F)(I) AND 14(M).
e.
Effect of Termination. If this Agreement is terminated pursuant
to this Section 12, it will become void and of no further force and effect, with
no liability on the part of any party to this Agreement (or any of their
respective former, current, or future general or limited partners, shareholders,
managers, members, directors, officers, Affiliates or agents), except that the
provisions of this Section 12(e), Section 12(f), Section 13 and Section 14,
including the Company's obligations under Section 14(m), will survive any
termination of this Agreement; provided, however, that nothing herein shall
relieve the Company from liabilities for damages incurred or suffered by any
Buyer as a result of any knowing or intentional breach by the Company of any of
its representations, warranties, covenants or other agreements set forth in this
Agreement that would reasonably be expected to cause any of the conditions set
forth in Sections 9 and 11(b) not to be satisfied.
f.
Termination Fees.
(I)
THE COMPANY WILL PAY, OR CAUSE TO BE PAID, TO AN ACCOUNT OR
ACCOUNTS DESIGNATED BY STERLING, BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS
AN AMOUNT EQUAL TO THE TERMINATION FEE:
(A)
IF THIS AGREEMENT IS TERMINATED BY A MAJORITY OF THE BUYERS
PURSUANT TO SECTION 12(C)(I) OR SECTION 12(C)(II), IN WHICH EVENT PAYMENT WILL
BE MADE WITHIN FIVE BUSINESS DAYS AFTER SUCH TERMINATION;
(B)
IF THIS AGREEMENT IS TERMINATED BY THE COMPANY PURSUANT TO
SECTION 12(D)(II), IN WHICH EVENT PAYMENT MUST BE MADE IN ADVANCE OF OR
CONCURRENT WITH SUCH TERMINATION;
(C)
IF (1) THIS AGREEMENT IS TERMINATED BY A MAJORITY OF THE BUYERS OR
THE COMPANY PURSUANT TO SECTION 12(B)(I) (BUT SUBJECT TO THE LIMITATIONS SET
FORTH IN SECTION 12(F)(II) BELOW),