Common use of Specific Performance; Damages Clause in Contracts

Specific Performance; Damages. (a) The parties hereto agree that irreparable damage, for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties hereto do not perform their obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. Subject to the following sentence, the parties acknowledge and agree (and further agree not to take any contrary position in any litigation concerning this Agreement) that (i) the parties shall be entitled to an injunction or injunctions, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including the obligations of the parties hereto to consummate the Merger in accordance with Section 1.02) without proof of damages or otherwise, and that such relief may be sought in addition to and shall not limit, diminish, or otherwise impair, any other remedy to which they are entitled under this Agreement, (ii) except as specifically set forth in Section 8.03, the provisions set forth in Section 8.03 shall not be construed to limit, diminish or otherwise impair in any respect any party’s right to specific enforcement and (iii) the right of specific enforcement is the remedy preferred by the parties, is an integral part of the transactions contemplated by this Agreement, and without that right, neither the Company nor Parent would have entered into this Agreement. Notwithstanding the foregoing, it is explicitly agreed that the right of the Company to seek an injunction, specific performance or other equitable remedies in connection with enforcing Parent’s obligation to consummate the Merger shall be subject to the requirements that (A) all conditions in Section 7.01 and 7.02 have been satisfied (other than those conditions that by their terms are to be satisfied by actions taken at Closing) at the time when the Closing is required to occur pursuant to Section 1.02, (B) the Financing has been funded in accordance with the terms of the Financing Letter (or any Alternative Financing) or will be funded in accordance with the terms thereof at the Closing, and (C) the Company has irrevocably confirmed that if the Financing is funded, then it would take such actions that are within its control to cause the Closing to occur. Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that (1) the other parties hereto have an adequate remedy at Law or (2) an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 9.08 shall not be required to provide any bond or other security in connection with any such order or injunction.

Specific Performance; Damages. (a) The parties hereto agree that irreparable damage, for which monetary damages, even if available, would not be an adequate remedy, damage would occur in the event that the parties hereto do not perform their obligations under any of the provisions of this Agreement letter agreement were not performed in accordance with its specified terms or otherwise breach such provisionstheir specific terms. Subject to It is accordingly agreed that the following sentenceparties (and, for the avoidance of doubt, the parties acknowledge and agree (and further agree not to take any contrary position in any litigation concerning this AgreementCompany) that (i) the parties shall be entitled to an injunction seek specific performance of the terms hereof. The parties hereby agree that specific performance shall be the sole and exclusive remedy at law or injunctions, equity with respect to breaches by any of the parties in connection with this letter agreement or the transactions contemplated hereby and that it may not seek or accept any other form of relief that may be available for breach under this letter agreement or the Other Agreements (as defined below) or otherwise in connection with this letter agreement or the transactions contemplated hereby (including monetary damages). The parties hereby agree not to raise any objections to the availability of the equitable remedy of specific performance, or other equitable relief, performance to prevent or restrain breaches or threatened breaches of this Agreement letter agreement by any party and to specifically enforce specifically the terms and provisions hereof (including the obligations of the parties hereto to consummate the Merger in accordance with Section 1.02) without proof of damages or otherwise, and that such relief may be sought in addition to and shall not limit, diminish, or otherwise impair, any other remedy to which they are entitled under this Agreement, (ii) except as specifically set forth in Section 8.03, the provisions set forth in Section 8.03 shall not be construed to limit, diminish or otherwise impair in any respect any party’s right to specific enforcement and (iii) the right of specific enforcement is the remedy preferred by the parties, is an integral part of the transactions contemplated by this Agreement, and without that right, neither the Company nor Parent would have entered into this Agreement. Notwithstanding the foregoing, it is explicitly agreed that the right of the Company to seek an injunction, specific performance or other equitable remedies in connection with enforcing Parent’s obligation to consummate the Merger shall be subject to the requirements that (A) all conditions in Section 7.01 and 7.02 have been satisfied (other than those conditions that by their terms are to be satisfied by actions taken at Closing) at the time when the Closing is required to occur pursuant to Section 1.02, (B) the Financing has been funded in accordance with the terms of the Financing Letter (or any Alternative Financing) or will be funded in accordance with the terms thereof at the Closing, and (C) the Company has irrevocably confirmed that if the Financing is funded, then it would take such actions that are within its control to cause the Closing to occur. Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that (1) the other parties hereto have an adequate remedy at Law or (2) an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with letter agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of each party under this Section 9.08 letter agreement. Notwithstanding any other term or condition of this letter agreement, under no circumstance shall Investor’s maximum liability hereunder for any reason, including its knowing and material breach of any of its commitments set forth herein, exceed the Commitment, and such damages shall not include any special, indirect or consequential damages. Notwithstanding any provision of the Other Agreements or this letter agreement to the contrary, in no event shall Investor be required liable to provide the Company for any bond damages resulting or stemming from or in any way related to the failure of any other security party to the Escrow Agreements, Acceptable LCs or that certain Amended and Restated Limited Liability Company Agreement of Purchaser, dated as of March 31, 2010, by and among the Original Member, the Managing Member and the Members named therein (in connection with any each case, as such order or injunctionterm is defined therein) to have failed to fund such other party’s respective commitment.

Specific Performance; Damages. (a) The parties hereto agree Each Party agrees that the other Parties would suffer irreparable damagedamage in the event that any of the covenants or agreements set forth in this Agreement, for which monetary damagesin any other document contemplated hereby, even if availableor in any certificate delivered hereunder or thereunder, were not performed in accordance with the terms of this Agreement or were otherwise breached and money damages or other legal remedies would not be an adequate remedyremedy for any such damage. Accordingly, would occur the Parties acknowledge and hereby agree that, at any time prior to the termination of this Agreement, in the event that the parties hereto do not perform their obligations under the provisions of any breach or threatened breach of this Agreement in accordance with its specified terms or otherwise breach such provisions. Subject to the following sentenceAgreement, the parties acknowledge and agree (and further agree not to take any contrary position in any litigation concerning this Agreement) that (i) the parties Parties shall be entitled to an injunction or injunctions, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including the obligations of the parties hereto to consummate the Merger in accordance with Section 1.02) without proof of damages or otherwise, and that such relief may be sought in addition to and shall not limit, diminish, or otherwise impair, any other remedy to which they are entitled under this Agreement, (ii) except as specifically set forth in Section 8.03, the provisions set forth in Section 8.03 shall not be construed to limit, diminish or otherwise impair in any respect any party’s right to specific enforcement and (iii) the right of specific enforcement is the remedy preferred by the parties, is an integral part of the transactions contemplated by this Agreement, and without that right, neither the Company nor Parent would have entered into this Agreement. Notwithstanding the foregoing, it is explicitly agreed that the right of the Company to seek an injunction, specific performance or other equitable remedies in connection with enforcing Parent’s obligation to consummate the Merger shall be subject to the requirements that (A) all conditions in Section 7.01 and 7.02 have been satisfied (other than those conditions that by their terms are to be satisfied by actions taken at Closing) at the time when the Closing is required to occur pursuant to Section 1.02, (B) the Financing has been funded in accordance with the terms of the Financing Letter (or any Alternative Financing) or will be funded in accordance with the terms thereof at the Closing, and (C) the Company has irrevocably confirmed that if the Financing is funded, then it would take such actions that are within its control to cause the Closing to occur. Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that (1) the other parties hereto have an adequate remedy at Law or (2) an award of specific performance is not an appropriate remedy for any reason at Law or equity. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent or restrain any such breaches of this Agreement or threatened breaches and to specifically enforce specifically the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations set forth in accordance with this Agreement, in addition to any other remedy to which a Party may be entitled at law or in equity (including the Sellers’ Representative’s or Purchaser’s right to terminate this Agreement if and as permitted pursuant to Section 9.08 shall 9.1 and to seek money damages if and as permitted by Section 9.2). Each Party hereby agrees not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of this Agreement by such Party. Each Party hereby waives (a) the defense that a remedy at law would be required adequate and (b) any requirement under any Law to provide any post a bond or other security as a prerequisite to obtaining equitable relief. In the event that any Party prevails against another Party in connection with any Action commenced to specifically enforce the terms of this Agreement pursuant to this Section 11.9, all reasonable out-of-pocket fees, costs and expenses, including reasonable attorneys’ fees and court costs, incurred by the such order or injunctionprevailing Party in such Action shall be reimbursed by the non-prevailing Parties.