Common use of Effect of Termination; Termination Fees Clause in Contracts

Effect of Termination; Termination Fees. (a) Except as otherwise expressly set forth in this Section 9.2, in the event of the valid termination of this Agreement pursuant to Section 9.1, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of any Party or its respective Affiliates, directors, officers, employees, stockholders, partners, members or Representatives; provided, that no such termination shall relieve (i) Sellers for fraud or any intentional and willful breach of this Agreement prior to such termination or (ii) Acquiror of its obligation to pay (a) the Termination Fee pursuant to Section 9.2(b), (b) those amounts described in Section 9.2(e), (c) the expense reimbursement obligations of Acquiror pursuant to Section 5.6, (d) the payment obligations of Acquiror pursuant to Section 5.10, and (e) the payment obligations of Acquiror pursuant to Section 6.1(e), in each case to the extent payable under the applicable section of this Agreement. The provisions referred to in clauses (i) and (ii) of the immediately preceding sentence, this Section 9.2 and Article XI are collectively referred to in this Agreement as the “Surviving Provisions.” The Surviving Provisions and any other Section or Article of this Agreement referenced in the Surviving Provisions which are required to survive in order to give appropriate effect to the Surviving Provisions, shall in each case survive any termination of this Agreement to the extent required in order to give appropriate effect to the Surviving Provisions. (b) In the event that this Agreement is validly terminated by Sellers pursuant to Section 9.1(c)(i) or Section 9.1(d), Acquiror shall promptly, but in no event later than two (2) Business Days after the date of such termination, pay or cause to be paid to Sellers or their designees an amount equal to $67,000,000 (the “Termination Fee”) by wire transfer of same day funds (it being understood that in no event shall Acquiror be required to pay the Termination Fee on more than one occasion, or at all if Acquiror consummates the Transactions, including pursuant to an order of specific performance pursuant to Section 11.14). Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed that the Termination Fee is a liquidated damage, and not a penalty. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any such termination of this Agreement under circumstances in which the Termination Fee is payable pursuant to this Section 9.2(b), the right to such payment: (A) constitutes a reasonable estimate of the damages that will be suffered by reason of any such termination of this Agreement, and (B) shall be in full and complete satisfaction of any and all damages arising under this Agreement (other than those amounts payable pursuant to Section 9.2(e) and the expense reimbursements due under the Surviving Provisions). (c) Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated pursuant to Section 9.1(c)(i) or Section 9.1(d), Sellers’ receipt of the Termination Fee from Acquiror pursuant to Section 9.2(b) and the payment of any expense reimbursements due pursuant to any of the Surviving Provisions or Section 9.2(e) shall be the sole and exclusive remedy of Sellers and their Affiliates against (i) Acquiror; (ii) the former, current and future holders of any equity, partnership or limited liability company interest, and any controlling Persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of Acquiror; (iii) any future holders of any equity, partnership or limited liability company interest; and (iv) the financing sources under the Debt, and any controlling Persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (collectively, the “Specified Persons”) for any loss or other liability of any kind suffered as a result of any breach of any representation, warranty, covenant or agreement set forth in this Agreement or the failure of the transactions contemplated by this Agreement to be consummated. For the avoidance of doubt, in the event the Closing does not occur, in no event shall the Specified Persons be subject to (nor shall the Sellers, any of their Affiliates, stockholders, or any other Person seek to recover) monetary damages in excess of the Termination Fee, the amounts payable under Section 9.2(e) and the expense reimbursements due under the Surviving Provisions (including any amounts under the Acquiror Guaranty) for any losses arising from or in connection with breaches by Acquiror of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action at law or in equity that any Seller, their Affiliates, or any other Person may have for any loss suffered as a result of the failure of the Transactions to be consummated, including as a result of the Debt Financing not being available to be drawn or otherwise arising from the Debt Financing Commitments; provided that in the absence of a termination of this Agreement or the payment of the Termination Fee, the foregoing does not limit the rights of the Sellers under Section 11.14, the Acquiror Guaranty or the Equity Commitment Letter. (d) Notwithstanding anything herein to the contrary, if Acquiror fails to effect the Closing for any or no reason or otherwise breaches this Agreement or fails to perform hereunder then, except for an order of specific performance as and only to the extent permitted by Section 11.14, Sellers’ sole and exclusive remedy (whether at Law, in equity, in contract, in tort or otherwise) against Acquiror for any such failure or breach shall be to terminate this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d) and receive payment of the Termination Fee from Acquiror pursuant to Section 9.2(b) and the payment of any amounts due pursuant to any of the Surviving Provisions or Section 9.2(e).

Effect of Termination; Termination Fees. (a) Except as otherwise expressly set forth in this Section 9.2, in In the event of the a valid termination of this Agreement pursuant to by either Parent or the Company as provided in Section 9.18.01, this Agreement shall forthwith become void and have no force or effect, without any liability or obligation on the part of any Party (or its respective Affiliatesany Company Related Party or Parent Related Party), directorswhether arising before or after such termination, officersbased on, employeesarising out of or relating to this Agreement or the negotiation, stockholdersexecution, partnersperformance or subject matter hereof (whether in contract or in tort or otherwise, members or Representatives; providedwhether at law, that no such termination shall relieve including at common law or by statute, or in equity), except for (i) Sellers Section 5.05(c), the last sentence of Section 6.02(a), the last sentence of Section 6.02(b), Section 6.08, this Section 8.02 and Article IX, which provisions shall survive such termination in accordance with their terms, (ii) subject to Section 8.02(e) and the Liability Limitation, liability of Parent for fraud or any intentional and willful breach Willful Breach of this Agreement prior to such termination but solely to the extent such liability arises out of a Willful Breach by Parent of any representation or warranty set forth in Article IV or any covenant or agreement set forth herein that gave rise to the failure of a condition set forth in Article VII, (iii) liability of the Company for any Willful Breach of this Agreement prior to such termination but solely to the extent such liability arises out of a Willful Breach by the Company of any representation or warranty set forth in Article III or any covenant or agreement set forth herein that gave rise to the failure of a condition set forth in Article VII or (iiiv) Acquiror liability of its obligation any Party for damages to pay (a) the Termination Fee pursuant to Section 9.2(b), (b) those amounts another Party for fraud. The liabilities described in Section 9.2(e), (c) the expense reimbursement obligations preceding sentence shall survive the termination of Acquiror pursuant to Section 5.6, (d) the payment obligations of Acquiror pursuant to Section 5.10, and (e) the payment obligations of Acquiror pursuant to Section 6.1(e)this Agreement; provided that, in each case instance, any such liabilities with respect to Parent shall not exceed the extent payable under the applicable section of this AgreementLiability Limitation. The provisions referred to in clauses (i) and (ii) Without limitation of the immediately preceding sentenceforegoing, neither the Company nor any Company Related Party shall be entitled to bring, and in no event shall the Company or any Company Related Party support, facilitate, encourage or take any action against Parent or any Parent Related Party with respect to, arising out of, relating to or in connection with this Agreement or the transactions contemplated hereby, other than (x) a claim for payment of monetary damages in accordance with this Section 9.2 and Article XI are collectively referred to in this Agreement as 8.02 following the “Surviving Provisions.” The Surviving Provisions and any other Section or Article of this Agreement referenced in the Surviving Provisions which are required to survive in order to give appropriate effect to the Surviving Provisions, shall in each case survive any termination of this Agreement (subject, for the avoidance of doubt, to the extent required in order to give appropriate effect Liability Limitation) and (y) prior to the Surviving Provisions. (b) In the event that this Agreement is validly terminated by Sellers pursuant to Section 9.1(c)(i) or Section 9.1(d), Acquiror shall promptly, but in no event later than two (2) Business Days after the date of such termination, pay or cause to be paid to Sellers or their designees an amount equal to $67,000,000 (the “Termination Fee”) by wire transfer of same day funds (it being understood that in no event shall Acquiror be required to pay the Termination Fee on more than one occasion, or at all if Acquiror consummates the Transactions, including pursuant to an order of specific performance pursuant to Section 11.14). Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed that the Termination Fee is a liquidated damage, and not a penalty. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any such termination of this Agreement under circumstances in which the Termination Fee is payable pursuant to this Section 9.2(b), the right to such payment: (A) constitutes a reasonable estimate of the damages that will be suffered by reason of any such termination of this Agreement, a claim for specific performance pursuant to, and on the terms and subject to the conditions set forth in, Section 9.10 (the foregoing clauses (x) and (By) shall be in full and complete satisfaction of any and all damages arising under this Agreement (other than those amounts payable pursuant to Section 9.2(e) and the expense reimbursements due under the Surviving Provisions). (c) Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated pursuant to Section 9.1(c)(i) or Section 9.1(d), Sellers’ receipt of the Termination Fee from Acquiror pursuant to Section 9.2(b) and the payment of any expense reimbursements due pursuant to any of the Surviving Provisions or Section 9.2(e) shall be being the sole and exclusive remedy of Sellers and their Affiliates against (i) Acquiror; (ii) remedies for the former, current and future holders of any equity, partnership or limited liability company interest, Company and any controlling Persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of Acquiror; (iii) any future holders of any equity, partnership or limited liability company interest; and (iv) the financing sources under the Debt, and any controlling Persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (collectively, the “Specified Persons”) for any loss or other liability of any kind suffered as a result of any breach of any representation, warranty, covenant or agreement set forth in this Agreement or the failure of the transactions contemplated by this Agreement to be consummated. For the avoidance of doubt, in the event the Closing does not occur, in no event shall the Specified Persons be subject to (nor shall the Sellers, any of their Affiliates, stockholders, or any other Person seek to recover) monetary damages in excess of the Termination Fee, the amounts payable under Section 9.2(e) and the expense reimbursements due under the Surviving Provisions (including any amounts under the Acquiror Guaranty) for any losses arising from or Company Related Party in connection with breaches by Acquiror of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action at law or in equity that any Seller, their Affiliates, or any other Person may have for any loss suffered as a result of the failure of the Transactions to be consummated, including as a result of the Debt Financing not being available to be drawn or otherwise arising from the Debt Financing Commitments; provided that in the absence of a termination of this Agreement or the payment of the Termination Fee, the foregoing does not limit the rights of the Sellers under Section 11.14, the Acquiror Guaranty or the Equity Commitment Letter. (d) Notwithstanding anything herein to the contrary, if Acquiror fails to effect the Closing for any or no reason or otherwise breaches this Agreement or fails to perform hereunder then, except for an order of specific performance as and only to the extent permitted by Section 11.14, Sellers’ sole and exclusive remedy (whether at Law, in equity, in contract, in tort or otherwise) against Acquiror for any such failure or breach shall be to terminate this Agreement pursuant to Section 9.1(c)(i) or Section 9.1(d) and receive payment of the Termination Fee from Acquiror pursuant to Section 9.2(b) and the payment of any amounts due pursuant to any of the Surviving Provisions or Section 9.2(eherewith).