Common use of Effect of Termination; Remedies Clause in Contracts

Effect of Termination; Remedies. In the event of termination of this Agreement pursuant to Section 7.1, this Agreement shall forthwith become void and have no effect (subject to Section 9.4), without any Liability on the part of any Party; provided, however, that (a) if this Agreement is validly terminated by Caterpillar pursuant to Section 7.1.3 or Section 7.1.6, or by Navistar pursuant to Section 7.1.4 or Section 7.1.7, or (b) if this Agreement is validly terminated by Navistar pursuant to Section 7.1.8, then, in the case of clause (a), the terminating Party or, in the case of clause (b), Caterpillar shall be promptly reimbursed by the other Party the out-of-pocket fees, costs and expenses actually incurred by such terminating Party or Caterpillar (as applicable) in connection with the transactions contemplated by this Agreement and the Transaction Agreements (including reasonable legal fees actually incurred). In the event of termination of this Agreement pursuant to Section 7.1, the Development Agreement will be automatically terminated and become void and have no effect (subject to Section 9.16 of the Development Agreement). If all of the conditions to Closing set forth in Section 5 of this Agreement (other than Section 5.3.1 of this Agreement) have been satisfied or waived in writing and this Agreement is validly terminated by Caterpillar pursuant to Section 7.1.3 because Caterpillar reasonably believes (as set forth in a validly delivered Caterpillar Expected Liabilities Determination) that the Caterpillar Expected Liabilities exceed the Materiality Threshold and as a result the conditions set forth in Section 5.3.1 would not be satisfied, Navistar shall not challenge Caterpillar’s right to terminate this Agreement pursuant to Section 7.1.3 (provided that the other requirements of Section 7.1.3 have been satisfied), even if Navistar believes that the Caterpillar Expected Liabilities are (or they actually are) less than the Materiality Threshold. If all of the conditions to Closing set forth in Section 5 of this Agreement (other than Section 5.2.1 of this Agreement) have been satisfied or waived in writing and this Agreement is validly terminated by Navistar pursuant to Section 7.1.4 because Navistar reasonably believes (as set forth in a validly delivered Navistar Expected Liabilities Determination) that the Navistar Expected Liabilities exceed the Materiality Threshold and as a result the conditions set forth in Section 5.2.1 would not be satisfied, Caterpillar shall not challenge Navistar’s right to terminate this Agreement pursuant to Section 7.1.4 (provided that the other requirements of Section 7.1.4 have been satisfied), even if Caterpillar believes that the Navistar Expected Liabilities are (or they actually are) less than the Materiality Threshold.

Effect of Termination; Remedies. In (a) If this Agreement is terminated pursuant to any of Section 8.1(a), by Buyer pursuant to Section 8.1(b), Section 8.1(c), Section 8.1(e) or Section 8.1(f), then the event Escrow Agent shall return the Buyer’s Deposit to Buyer within two Business Days after such termination. (b) If this Agreement is terminated pursuant to Section 8.1(g), then, (i) within two Business Days after such termination, Seller shall return the Buyer’s Deposit to Buyer and (ii) if Seller consummates an Alternative Transaction, Seller also shall pay to Buyer a break-up fee equal to 3% of the cash portion of the Purchase Price (the “Break-Up Fee”), upon the closing of such Alternative Transaction, provided however, that pending payment of the Break-Up Fee Buyer shall be deemed to have an allowed administrative expenses claim for such amounts pursuant to sections 503(a)and(b) and 507(a)(2) of the Bankruptcy Code. (c) If this Agreement is terminated pursuant to Section 8.1(d), or otherwise due to Buyer’s breach of this Agreement, then, Seller shall retain the Buyer’s Deposit as its exclusive remedy with respect to any such breach (including, without limitation, matters giving rise to the termination of this the Agreement pursuant to Section 7.1, 8.1(d); and any court order approving this Agreement shall forthwith become void and have no effect so provide. (subject to Section 9.4), without any Liability on the part of any Party; provided, however, that (ad) if If this Agreement is validly terminated by Caterpillar pursuant to Section 7.1.3 8.1(g), the Break-Up Fee shall be the Buyer’s sole and exclusive remedy against the Seller (whether in contract or Section 7.1.6tort, under statute, rule, law or by Navistar pursuant to Section 7.1.4 or Section 7.1.7otherwise), or (b) if this Agreement is validly terminated by Navistar pursuant to Section 7.1.8in full satisfaction of all of the Seller’s obligations hereunder, then, except in the case of clause fraud or intentional misconduct. Any payments of the Break-Up Fee under this Section 8.2 shall be made by wire transfer of immediately available funds to an account designated in writing by Buyer. Seller acknowledges that the Break-Up Fee (a)or any portion thereof) is a necessary and appropriate expense for the administration of its estate, pursuant to sections 503 and 507 of the Bankruptcy Code, and that the Break-Up Fee (or any portion thereof) is an allowed administrative expense against its estate. Notwithstanding the foregoing, the terminating Party or, in the case of clause (b), Caterpillar Break-Up Fee shall be promptly reimbursed by payable exclusively and directly from the other Party the out-of-pocket fees, costs and expenses actually incurred by such terminating Party or Caterpillar (as applicable) in connection with the transactions contemplated by this Agreement and the Transaction Agreements (including reasonable legal fees actually incurred). In the event of termination of this Agreement pursuant to Section 7.1, the Development Agreement will be automatically terminated and become void and have no effect (subject to Section 9.16 cash component consideration of the Development Agreement)Alternative Transaction, if and when paid. If all Seller has no obligation to make such payments from any other cash or sources of the conditions to Closing set forth in Section 5 of this Agreement (other than Section 5.3.1 of this Agreement) have been satisfied or waived in writing and this Agreement is validly terminated by Caterpillar pursuant to Section 7.1.3 because Caterpillar reasonably believes (as set forth in a validly delivered Caterpillar Expected Liabilities Determination) that the Caterpillar Expected Liabilities exceed the Materiality Threshold and as a result the conditions set forth in Section 5.3.1 would not be satisfied, Navistar shall not challenge Caterpillar’s right to terminate this Agreement pursuant to Section 7.1.3 (provided that the other requirements of Section 7.1.3 have been satisfied), even if Navistar believes that the Caterpillar Expected Liabilities are (or they actually are) less than the Materiality Threshold. If all of the conditions to Closing set forth in Section 5 of this Agreement (other than Section 5.2.1 of this Agreement) have been satisfied or waived in writing and this Agreement is validly terminated by Navistar pursuant to Section 7.1.4 because Navistar reasonably believes (as set forth in a validly delivered Navistar Expected Liabilities Determination) that the Navistar Expected Liabilities exceed the Materiality Threshold and as a result the conditions set forth in Section 5.2.1 would not be satisfied, Caterpillar shall not challenge Navistar’s right to terminate this Agreement pursuant to Section 7.1.4 (provided that the other requirements of Section 7.1.4 have been satisfied), even if Caterpillar believes that the Navistar Expected Liabilities are (or they actually are) less than the Materiality Thresholdcash whatsoever.

Effect of Termination; Remedies. In the event of termination of (a) If this Agreement is terminated pursuant to any provision of Section 7.19.5, then, except as provided in this Section 9.6 and except for the provisions of Section 8.3, Section 9.5, this Section 9.6, Section 10.10, Section 10.11, Section 12.1, Section 12.2 and Article 16, this Agreement shall forthwith become void and of no further force or effect and the Parties shall have no effect (subject to Section 9.4), without any Liability on the part of any Party; provided, however, that (a) if this Agreement is validly terminated by Caterpillar pursuant to Section 7.1.3 or Section 7.1.6, or by Navistar pursuant to Section 7.1.4 or Section 7.1.7, or obligation hereunder. (b) if this Agreement is validly terminated by Navistar pursuant to Section 7.1.8, then, in If Sellers have the case of clause (a), the terminating Party or, in the case of clause (b), Caterpillar shall be promptly reimbursed by the other Party the out-of-pocket fees, costs and expenses actually incurred by such terminating Party or Caterpillar (as applicable) in connection with the transactions contemplated by this Agreement and the Transaction Agreements (including reasonable legal fees actually incurred). In the event of termination of this Agreement pursuant to Section 7.1, the Development Agreement will be automatically terminated and become void and have no effect (subject to Section 9.16 of the Development Agreement). If all of the conditions to Closing set forth in Section 5 of this Agreement (other than Section 5.3.1 of this Agreement) have been satisfied or waived in writing and this Agreement is validly terminated by Caterpillar pursuant to Section 7.1.3 because Caterpillar reasonably believes (as set forth in a validly delivered Caterpillar Expected Liabilities Determination) that the Caterpillar Expected Liabilities exceed the Materiality Threshold and as a result the conditions set forth in Section 5.3.1 would not be satisfied, Navistar shall not challenge Caterpillar’s right to terminate this Agreement pursuant to Section 7.1.3 9.5(c) or Section 9.5(f) because of (provided that i) the other requirements Willful Breach by a Purchaser Entity of Section 7.1.3 have been satisfied)this Agreement, even if Navistar believes that or (ii) the Caterpillar Expected Liabilities are failure of the Purchaser Entities to close the transactions contemplated by this Agreement in the instance where, as of the Long Stop Date, (or they actually areA) less than the Materiality Threshold. If all of the conditions to Closing set forth contained in Section 5 9.1 (excluding conditions that, by their terms, cannot be satisfied until the Closing, provided that such conditions are capable of this Agreement (other than Section 5.2.1 being satisfied as of this Agreementthe date of Sellers’ notice) have been satisfied (or waived by the Purchaser Entities), (B) Sellers confirm to the Purchaser Entities in writing that Sellers are ready, willing, and able to perform their obligations under Section 4.2, and (C) the Purchaser Entities nevertheless elect not to close the transactions contemplated by this Agreement, then, in either such event, Sellers shall be entitled to (x) terminate this Agreement is validly terminated and receive the applicable Termination Amount or (y) seek the specific performance by Navistar pursuant to Section 7.1.4 because Navistar reasonably believes (as set forth in a validly delivered Navistar Expected Liabilities Determination) the Purchaser Entities hereunder, provided that if Sellers have the Navistar Expected Liabilities exceed the Materiality Threshold and as a result the conditions set forth in Section 5.2.1 would not be satisfied, Caterpillar shall not challenge Navistar’s right to terminate this Agreement pursuant to Section 7.1.4 9.5(c) or Section 9.5(f) solely due to the fact that the Working Capital Financing has not been funded or will not be funded at Closing for any reason, Sellers shall not be entitled to seek such specific performance and instead shall be entitled to terminate this Agreement and receive the applicable Termination Amount. The remedies in the preceding sentence shall be the sole and exclusive remedies of Sellers with respect to the Purchaser Entities’ failure to close the transactions contemplated by this Agreement as contemplated by this Section 9.6(b).. (c) If the Purchaser Entities have the right to terminate this Agreement pursuant to Section 9.5(b) or Section 9.5(g) because of (i) the Willful Breach by Sellers of this Agreement, or (ii) the failure of Sellers to close the transactions contemplated by this Agreement in the instance where, as of the Long Stop Date, (A) all of the conditions contained in Section 9.2 (excluding conditions that, by their terms, cannot be satisfied until the Closing; provided that such conditions are capable of being satisfied as of the date of the Purchaser Entities’ notice) have been satisfied (or waived by Sellers), (B) the Purchaser Entities confirm to Sellers in writing that the Purchaser Entities are ready, willing, and able to perform their obligations under Section 4.3, and (C) Sellers nevertheless elect not to close the transactions contemplated by this Agreement, then, in either such event, the Purchaser Entities shall be entitled to (x) terminate this Agreement, receive the return of the Deposit Amount, free and clear of any claims thereon by Sellers, and receive the applicable Termination Amount or (y) seek the specific performance by the Sellers hereunder; provided that if the Purchaser Entities have the right to terminate this Agreement pursuant to Section 9.5(b) or Section 9.5(g) solely due to the fact that the condition set forth in Section 9.1(i) shall not be satisfied at Closing for any reason, the Purchaser Entities shall not be entitled to seek such specific performance and instead shall be entitled to terminate this Agreement, receive the return of the Deposit Amount, free and clear of any claims thereon by Sellers, and receive the applicable Termination Amount. The remedies provided in the preceding sentence shall be the sole and exclusive remedies of the Purchaser Entities with respect to Sellers’ failure to close the transactions contemplated by this Agreement as contemplated by this Section 9.6(c). If the Purchaser Entities are entitled to the return of the Deposit Amount pursuant to this Section 9.6(c), EMC shall return the Deposit Amount to the Purchaser Entities within five (5) Business Days of the date this Agreement is terminated. (d) If this Agreement is terminated by any Party pursuant to Section 9.5(d) as a result of the failure of the condition in Section 9.1(e) or Section 9.2(e) to be satisfied on or before the Long Stop Date, then the Purchaser Entities shall be entitled to the return of the Specified Percentage of the Deposit Amount, and Sellers shall be entitled to the applicable Termination Amount, which shall be the sole and exclusive remedies of Sellers with respect to the Purchaser Entities’ failure to close the transactions contemplated by this Agreement as contemplated by this Section 9.6(d).. If the Purchaser Entities are entitled to the return of the Specified Percentage the Deposit Amount pursuant to this Section 9.6(d), EMC shall return the Specified Percentage of the Deposit Amount to the Purchaser Entities within five (5) Business Days of the date this Agreement is terminated. (e) Other than Sellers’ rights under the Confidentiality Agreement and any other confidentiality agreement between Sellers and/or any of their Affiliates, on the one hand, and the Purchaser Entities /or their Affiliates, on the other requirements of hand, if this Agreement is terminated for any reason, other than as set forth in Section 7.1.4 have been satisfied9.6(b), even Section 9.6(c) or Section 9.6(d), then none of the Parties shall have any Liability or obligation hereunder as a result of such termination and EMC shall, within five (5) Business Days of the date this Agreement is terminated, return to the Purchaser Entities, in immediately available funds, the Deposit Amount free and clear of any claims thereon by Sellers. (f) Subject to the foregoing, other than Sellers’ rights under the Confidentiality Agreement and any other confidentiality agreement between Sellers and/or any of their Affiliates, on the one hand, and the Purchaser Entities and/or their Affiliates, on the other hand, upon the termination of this Agreement, no Party shall have any other Liability or obligation hereunder, and, following any termination of this Agreement, Sellers shall be free to all the rights and benefits associated with the ownership of the Assets and the Equity Interests, including the right to sell the Assets and the Equity Interests at Sellers’ discretion, without any claim by the Purchaser Entities with respect thereto. (g) After termination of this Agreement, each Purchaser Entity and its Representatives shall immediately cease using any Confidential Information and Sellers’ Technical Information and promptly return to Sellers all Confidential Information and Sellers’ Technical Information delivered to such Purchaser Entity or its Representatives by Sellers or their Representatives, and destroy, or cause the destruction of, all copies and reproductions (both written and electronic) in such Purchaser Entity’s or its Representatives’ possession. Notwithstanding anything to the contrary in this Section 9.6(g), the Purchaser Entities may retain one copy of such information in its secure files for the sole purpose of administering their obligations under this Agreement and the Purchaser Entities shall not be required to purge or cause others to purge electronic archival media automatically generated by backup computer systems if Caterpillar believes that such media will be destroyed pursuant to a systematic records retention process and not otherwise utilized, in each case, subject to the Navistar Expected Liabilities are (or they actually are) less than terms of the Materiality ThresholdConfidentiality Agreement and the Clean Team Agreement.

Effect of Termination; Remedies. In the event of termination of this Agreement pursuant to Section 7.1, (a) If this Agreement shall forthwith become void and have no effect be terminated pursuant to this Article XI, all further obligations of the parties under this Agreement (subject to other than the obligations described in the last sentence of Section 9.46.1(b), Section 7.4, Section 10.2(a)(iii), this Section 11.3, and Article XII, each of which shall survive any such termination) shall be terminated without any further Liability on the part of any Partyparty to the other; provided, however, that nothing herein shall relieve any party from Liability for fraud, intentional misconduct or willful and wanton breach of this Agreement. (ab) if In the event that this Agreement is validly terminated by Caterpillar Buyer or Seller pursuant to Section 7.1.3 11.1(d) or Section 7.1.6, or by Navistar pursuant to Section 7.1.4 or Section 7.1.7, or (b11.1(e) if this Agreement is validly terminated by Navistar pursuant to Section 7.1.8, thenand, in each case, at the case time of clause such termination, (a), the terminating Party or, in the case of clause (b), Caterpillar shall be promptly reimbursed by the other Party the out-of-pocket fees, costs and expenses actually incurred by such terminating Party or Caterpillar (as applicablei) in connection with the transactions contemplated by this Agreement and the Transaction Agreements (including reasonable legal fees actually incurred). In the event of termination of this Agreement pursuant to Section 7.1, the Development Agreement will be automatically terminated and become void and have no effect (subject to Section 9.16 of the Development Agreement). If all of the conditions to Closing set forth in Section 5 of this Agreement (other than Section 5.3.1 of this Agreement) have been satisfied or waived in writing and this Agreement is validly terminated by Caterpillar pursuant to Section 7.1.3 because Caterpillar reasonably believes (as set forth in a validly delivered Caterpillar Expected Liabilities Determination) that the Caterpillar Expected Liabilities exceed the Materiality Threshold and as a result the conditions set forth in Article IX (other than (A) the conditions set forth in Sections 9.2 and 9.3 (but only to the extent the Court Order is issued or brought, or the approvals required to be obtained, are under applicable Antitrust Laws), (B) the delivery of certificates which (in light of the underlying facts as of the time of such termination and any waiver of the condition set forth in Section 5.3.1 9.1(a) deemed made pursuant to Section 11.1(e)) would be capable of being delivered but are to be delivered on the Closing Date and (C) such other conditions the failure of which to be satisfied by such date has been principally caused by a material breach by Buyer or Guarantor of any representation, warranty or covenant hereunder or the facts or circumstances underlying such breach), have been satisfied or (to the extent permitted by Requirements of Law) waived, (ii) Buyer does not be satisfied, Navistar shall not challenge Caterpillar’s have the right to terminate this Agreement pursuant to Section 7.1.3 (provided that the other requirements of Section 7.1.3 have been satisfied11.1(b), even if Navistar believes that and (iii) neither Buyer nor Seller has the Caterpillar Expected Liabilities are (or they actually are) less than the Materiality Threshold. If all of the conditions to Closing set forth in Section 5 of this Agreement (other than Section 5.2.1 of this Agreement) have been satisfied or waived in writing and this Agreement is validly terminated by Navistar pursuant to Section 7.1.4 because Navistar reasonably believes (as set forth in a validly delivered Navistar Expected Liabilities Determination) that the Navistar Expected Liabilities exceed the Materiality Threshold and as a result the conditions set forth in Section 5.2.1 would not be satisfied, Caterpillar shall not challenge Navistar’s right to terminate this Agreement pursuant to Section 7.1.4 11.1(d) for any reason other than that consummation of the transactions contemplated hereby would violate any Antitrust Law (provided or would have the right to so terminate assuming that the other requirements relevant Court Order referenced in Section 11.1(d) has become final and non-appealable at the time of Section 7.1.4 have been satisfiedsuch termination), even if Caterpillar believes then Buyer or Guarantor shall pay Seller a fee equal to $5,500,000 (the “Non-Clearance Termination Fee”) by wire transfer of immediately available funds on the third Business Day following the date of such termination of this Agreement. (c) Buyer and the Guarantor each acknowledges that the Navistar Expected Liabilities are (or they actually areprovisions contained in Section 11.3(b) less than constitute an integral part of the Materiality Threshold.transactions contemplated by this Agreement, and that, without these agreements, neither Parent nor Seller would have entered into this