Common use of Effect of Termination or Breach Clause in Contracts

Effect of Termination or Breach. If the transactions contemplated hereby are not consummated (a) this Agreement shall become null and void and of no further force and effect, except (i) for this Section 11.3, (ii) for the provisions of Sections 11.2 (Breakup Fee and Expense Reimbursement), 13.1 (Expenses), 13.7 (Submission to Jurisdiction), 13.8 (Governing Law), 13.9 (Binding Nature; Assignment), 13.10 (No Third Party Beneficiary), and 13.11 (Construction) hereof, and (iii) that the termination of this Agreement for any cause shall not relieve any party hereto from any Liability which at the time of termination had already accrued to any other party hereto or which thereafter may accrue in respect of any act or omission of such party prior to such termination; (b) in the event this Agreement is terminated in accordance with its terms, the payment of the Breakup Fee and Expense Reimbursement shall be sole and exclusive remedy (as liquidated damages) of Purchaser; (c) in the event this Agreement is terminated by Sellers pursuant to Section 11.1(c), the receipt by ParentCo (on behalf of Sellers) of the Escrow Funds shall be Sellers’ sole and exclusive remedy (as liquidated damages) of Sellers and Purchaser shall promptly disburse such amount to ParentCo; and (d) if this Agreement is terminated for any reason other than the termination of this Agreement by Sellers pursuant to Section 11.1(c), Sellers shall not be entitled to any damages, losses, or payment from Purchaser, and Purchaser shall have no further obligation or Liability of any kind to Sellers, any of their Affiliates, or any Third Party on account of this Agreement, and Sellers shall promptly instruct the Escrow Agent to return to Purchaser the Escrow Funds.

Effect of Termination or Breach. If the transactions contemplated hereby are not consummated (a) Subject to Section 10.4, if this Agreement is terminated pursuant to Section 10.1(a), 10.1(b), 10.1(c), 10.1(e), 10.1(f)(with respect to such Facilities), or 10.1(g)(with respect to such Facility(ies)), 10.1(h)(with respect to such (Facility(ies)), none of the Parties shall be liable to the other Parties for any liabilities and damages that occurred prior to such termination, for Facilities that are not Transferred Facilities, other than liability for intentional, material breaches of this Agreement that occurred prior to such termination. Further, except in the event of liability for intentional and material breaches by Purchaser, Purchaser Parties, Purchaser Assignees, or OTA Transferees, if the Initial Closing has not taken place, the Deposit shall be returned to Purchaser, and if the Initial Closing has taken place, any remaining Deposit allocated to Facilities that have not yet become Transferred Facilities shall be returned to Purchaser. (b) If an uncured material breach gives rise to a right of Seller or Purchaser to terminate this Agreement pursuant to Section 10.1(d), then: (i) If Purchaser is the breaching Party, Seller shall have the right to keep the Deposit and be paid the Termination Payment as liquidated damages and terminate the Agreement, but shall not have the right to xxx for damages or pursue specific performance. In the event the Initial Closing has occurred, Seller shall have the right to keep any remaining portion of the Deposit and be paid the Termination Payment as liquidated damages and terminate this Agreement, but such termination will only be with regard to the Facilities that are not yet Transferred Facilities; the Agreement shall remain in full force and effect for all Transferred Facilities that have had a Closing. Within five (5) Business Days after a termination giving Seller the right to the Termination Payment pursuant to this Section 10.2(b)(i), Purchaser shall pay or cause to be paid to Seller such Termination Payment. THE PARTIES ACKNOWLEDGE AND AGREE THAT (a) IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO DETERMINE SELLERS ACTUAL DAMAGES IN THE EVENT OF PURCHASER’S DEFAULT UNDER THIS AGREEMENT, AND (b) TAKING INTO ACCOUNT ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE SUM OF THE DEPOSIT AND THE TERMINATION PAYMENT IS A REASONABLE ESTIMATE OF SELLER’S ACTUAL DAMAGES IN SUCH EVENT. CONSEQUENTLY, IN THE EVENT OF PURCHASER’S DEFAULT UNDER THIS AGREEMENT PRIOR TO CLOSING, SELLER’S SOLE AND EXCLUSIVE REMEDY AT LAW SHALL BE TO TERMINATE THIS AGREEMENT AND TO RECEIVE THE DEPOSIT AND THE TERMINATION PAYMENT, AND SELLER SHALL NOT IN ADDITION TO SUCH REMEDY HAVE ANY RIGHTS TO INDEMNIFICATION UNDER SECTION 9.3 FOR FACILITIES THAT ARE NOT TRANSFERRED FACILITIES. (ii) If Seller is the breaching Party, Purchaser shall have the right to a return of the Deposit, terminate the Agreement, and xxx for damages, or to pursue specific performance solely to require closing (but not to obtain money for losses; further, the Deposit shall be left in escrow pending the outcome of any action for specific performance). In the event the Initial Closing has occurred, Purchaser shall have the same rights but only with regard to the Facilities that are not yet Transferred Facilities; the Agreement shall remain in full force and effect for all Transferred Facilities that have had a Closing. In the event that Purchaser is in material default under this Agreement (including any material default that is waived by Seller), then its remedy will be limited to termination and damages, and it shall have no further right to specific performance. (c) Upon a termination, this Agreement shall become null and void and of no further force and effect, except (i) for this Section 11.3, (ii) for the provisions of Sections 11.2 Section 6.4(a)-(c) (Breakup Fee and Expense Reimbursementrelating to confidentiality, as if the Agreement had Closed), 13.1 Article IX (Expenses)relating to indemnification, 13.7 Article X (Submission relating to Jurisdiction)termination, 13.8 (Governing Law)breach, 13.9 (Binding Nature; Assignment)and damages, 13.10 (No Third Party Beneficiaryand any related provisions of the Agreement to the extent necessary to give effect to the remedies hereunder), and 13.11 Article XI (Construction) hereof, and (iii) that the termination of this Agreement for any cause shall not relieve any party hereto from any Liability which at the time of termination had already accrued relating to any other party hereto or which thereafter may accrue in respect of any act or omission of such party prior to such termination; (b) in the event certain miscellaneous provisions). If this Agreement is terminated after the Initial Closing, then this Agreement shall become void and of no further force and effect with regard to any Facilities that are not yet Transferred Facilities, except for the provisions of Section 6.4(a) (relating to confidentiality), Article IX (relating to indemnification), Article X (relating to termination, breach and damages, and any related provisions of the Agreement to the extent necessary to give effect to the remedies hereunder), and Article XI (relating to certain miscellaneous provisions); provided, however, this Agreement shall remain in accordance with its termsfull force and effect for all Transferred Facilities that have had a Closing. Further, the payment of the Breakup Fee non-disclosure agreement with BlueMountain Capital Management (“BMCM”) will remain in effect and Expense Reimbursement shall be sole and exclusive remedy (as liquidated damages) of Purchaser; (c) obligations thereunder owed by BMCM will remain in the event this Agreement is terminated by Sellers pursuant to Section 11.1(c), the receipt by ParentCo (on behalf of Sellers) of the Escrow Funds shall be Sellers’ sole and exclusive remedy (as liquidated damages) of Sellers and Purchaser shall promptly disburse such amount to ParentCo; and place. (d) if this Agreement is terminated So long as not the result of an intentional breach committed for any reason other than the termination purpose of this Agreement by Sellers pursuant to Section 11.1(c)delaying a Closing, Sellers a Facility becoming an Escrow Facility shall not be entitled to any damages, losses, a default or payment from Purchaserbreach by Seller, and Purchaser a Facility becoming an Operator Delay Facility shall have no further obligation not be a default or Liability of any kind breach by Purchaser; provided, however, that the failure to Sellersreturn such Escrow Facility or Operator Delay Facility to eligible status for Closing prior to the Outside Date shall give rise to the termination remedies provided in Sections 10.3 and 10.4, any of their Affiliates, or any Third Party on account of this Agreementrespectively, and Sellers shall promptly instruct the Escrow Agent failure to make commercially reasonable, good faith efforts to return such Facility to Purchaser the Escrow Funds.eligible status for Closing shall be a breach giving rise to remedies pursuant to this Article X.

Effect of Termination or Breach. If the transactions contemplated hereby are not consummated (a) this Agreement shall become null and void and is validly terminated pursuant to Section 13.1, there will be no liability or obligation on the part of no further force and effect, Sellers or Purchaser (or any of their Affiliates or any of its or their respective Representatives) except (i) for this Section 11.3, (ii) for that the provisions of Sections 11.2 (Breakup Fee with respect to expenses in Section 14.3 and Expense Reimbursement), 13.1 (Expenses), 13.7 (Submission confidentiality in Section 14.5 will continue to Jurisdiction), 13.8 (Governing Law), 13.9 (Binding Nature; Assignment), 13.10 (No Third Party Beneficiary)apply following any such termination, and 13.11 the provisions in Section 5.10 will continue to apply following any such termination until the outstanding principal and accrued unpaid interest of any indebtedness owing by Sellers or their Affiliates to Purchaser or its Affiliates have been paid in full. Notwithstanding any other provision in this Agreement to the contrary, if this Agreement is validly terminated by Purchaser pursuant to Section 13.1(d) hereof as a result of a Material Breach by Sellers, Purchaser may elect one of the following remedies as its sole remedy: (Construction1) hereof, and (iii) that the termination specific performance of this Agreement subject to Sellers receiving the cash to which they are entitled as provided in Section 2.2 and Section 2.4 of this Agreement, or (2) a payment of Five Hundred Thousand Dollars ($500,000) from Sellers as liquidated damages, and not as a penalty, for any cause shall not relieve any party hereto from any Liability which at such Material Breach, it being agreed between the time of termination had already accrued Parties that the actual damages to any other party hereto or which thereafter may accrue in respect of any act or omission of such party prior to such termination; (b) Purchaser in the event of such a Material Breach are impractical to ascertain and the amount of Five Hundred Thousand Dollars ($500,000) is a reasonable estimate thereof. This payment of $500,000 shall be in addition to the obligation of Sellers or their Affiliates to repay the LOI Loan. Notwithstanding any other provision in this Agreement to the contrary, if this Agreement is terminated in accordance with its terms, the payment of the Breakup Fee and Expense Reimbursement shall be sole and exclusive remedy (as liquidated damages) of Purchaser; (c) in the event this Agreement is validly terminated by Sellers pursuant to Section 11.1(c)13.1(c) hereof as a result of a Material Breach by Purchaser, the receipt by ParentCo (on behalf sole remedy of Sellers) of the Escrow Funds Sellers shall be Sellers’ sole for Sellers and exclusive remedy (their Affiliates to retain the LOI Loan proceeds with the LOI Loan being cancelled and having no further force and effect as liquidated damages) of Sellers and Purchaser shall promptly disburse such amount to ParentCo; and (d) if this Agreement is terminated for any reason other than the termination of this Agreement by Sellers pursuant to Section 11.1(c), Sellers shall not be entitled to any damages, losses, or payment from Purchaser, and Purchaser shall have no further obligation or Liability not as a penalty, for such Material Breach, it being agreed between the Parties that the actual damages to Sellers in the event of any kind such a Material Breach are impractical to Sellers, any ascertain and the amount of their Affiliates, or any Third Party on account of this Agreement, and Sellers shall promptly instruct the Escrow Agent to return to Purchaser the Escrow FundsLOI Loan is a reasonable estimate thereof.

Effect of Termination or Breach. If the transactions contemplated hereby are not consummated (a) this Agreement shall become null and void and of no further force and effect, except (i) for this Section 11.39.3, (ii) for the provisions of Sections 11.2 (Breakup Fee and Expense Reimbursement)2.10, 13.1 (Expenses)9.2, 13.7 (Submission to Jurisdiction)11.1, 13.8 (Governing Law)11.2, 13.9 (Binding Nature; Assignment)11.8, 13.10 (No Third Party Beneficiary)11.9, 11.10, 11.11, and 13.11 (Construction) 11.12 hereof, and (iii) that the termination of this Agreement for any cause shall not relieve any party hereto from any Liability which at the time of termination had already accrued to any other party hereto or which thereafter may accrue in respect of any act or omission of such party prior to such termination; (b) in the event this Agreement is terminated in accordance with its terms, the payment of the Breakup Fee or Acquisition Proposal Fee under Section 9.2 (to the extent such Breakup Fee or Acquisition Proposal Fee is due and Expense Reimbursement payable) shall be sole and exclusive remedy (as liquidated damages) of PurchaserPurchasers; (c) in the event this Agreement is terminated by Sellers pursuant to Section 11.1(c9.1(c) or Section 9.1(j), the receipt by ParentCo (on behalf of Sellers) Sellers of the Escrow Funds shall be Sellers’ ' sole and exclusive remedy (as liquidated damages) of Sellers, and ParentCo (on behalf of Sellers) and Purchasers shall jointly instruct the Escrow Agent to disburse the Escrow Funds to Sellers and Purchaser shall promptly disburse on the first (1st) business day after receipt by the Escrow Agent of such amount to ParentCojoint written notice; and (d) if this Agreement is terminated for any reason other than the termination of this Agreement by Sellers pursuant to Section 11.1(c9.1(c) or Section 9.1(j), Sellers shall not be entitled to any damages, losses, or payment from PurchaserPurchasers, and Purchaser Purchasers shall have no further obligation or Liability of any kind to Sellers, any of their Affiliates, or any Third Party on account of this Agreement, and Sellers ParentCo (on behalf of Sellers) and Purchasers shall promptly jointly instruct the Escrow Agent to return to Purchaser Purchasers the Escrow FundsFunds on the first (1st) business day after receipt by the Escrow Agent of such joint written notice.