Effect of Termination; Termination Fee. (a) If this Agreement is terminated pursuant to Section 10.1 hereof, this Agreement shall become void and of no effect with no liability on the part of any party hereto, except that the agreements contained in Sections 10.3(b) and (c) and 11.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant to any provision in Section 10.1. (b) If this Agreement shall be terminated pursuant to clause (d), (f), (h), (j) or (m) in Section 10.1, then (i) ARS shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster a termination fee equal to $3.25 million and (ii) ServiceMaster shall be entitled to the termination fee in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this Agreement. In no event shall ARS be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c). (c) If this Agreement shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal to the reasonable and documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution of this Agreement and the attempted completion of the Offer and the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c). (d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 2 contracts
Sources: Merger Agreement (Servicemaster Co), Merger Agreement (American Residential Services Inc)
Effect of Termination; Termination Fee. (a) If this This Agreement is may only be terminated in the circumstances described in Section 10.1 and pursuant to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination, including the provision of Section 10.1 hereof, this Agreement shall become void and of no effect with no liability on the part of any party hereto, except that the agreements contained in Sections 10.3(b) and (c) and 11.4 hereof shall survive the termination hereof and except that no under which such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunderis made. Without limiting by implication In the generality event of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any valid termination of this Agreement pursuant to Section 10.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any provision Party or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Sections 7.15 (Public Announcements), 10.3 (Fees and Expenses), 11.1 (Waiver of Claims Against Trust), ARTICLE XII (Miscellaneous), this Section 10.2 (Effect of Termination) and Section 12.3 (Third Parties) shall survive the termination of this Agreement, and (ii) nothing herein shall relieve any Party from Liability for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above, subject to Section 11.1). Without limiting the foregoing, and except as provided in Section 10.3 and this Section 10.2 (but subject to Section 11.1) and subject to the right to seek injunctions, specific performance or other equitable relief in accordance with Section 12.6, the Parties’ sole right prior to the Closing with respect to any breach of any representation, warranty, covenant or other agreement contained in this Agreement by another Party or with respect to the transactions contemplated by this Agreement shall be the right, if applicable, to terminate this Agreement pursuant to Section 10.1; provided, however, if, at the time of the termination of this Agreement, the March GL Merger has been consummated and March GL is not in material uncured breach of this Agreement, the Parties agree that, promptly after receiving a written request from R▇▇▇▇▇ ▇▇▇▇▇, they will transfer all (100%) of the issued and outstanding capital stock of March GL to the individuals who were shareholders of March GL immediately before the March GL Merger was completed. This transfer will be free and clear of any Liens and will be carried out under a purchase and sale agreement and stock power that are in a form and substance reasonably acceptable to R▇▇▇▇▇ ▇▇▇▇▇. The Parties agree to take all actions and execute all documents necessary to effectuate such transfer promptly following such request.
(b) If In addition, if this Agreement is terminated as a primary result of the actions or inactions of Purchaser, Purchaser shall, or shall be terminated pursuant cause the applicable Purchaser Shareholder to, transfer, convey and assign to clause Greenland one-third (d1/3) of the issued and outstanding “Founder Shares” (as defined in the IPO Prospectus), (f)free and clear of all Liens, (h), (j) or (m) in Section 10.1, then (i) ARS shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster as a termination fee equal (the “Termination Fee”). The Parties acknowledge and agree that the Termination Fee is intended to $3.25 million compensate Greenland for the time, expense and (ii) ServiceMaster shall be entitled to the termination fee opportunity costs incurred in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this Agreement. In no event shall ARS be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c).
(c) If this Agreement shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal to the reasonable and documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution of connection with this Agreement and the attempted completion of the Offer transactions contemplated hereby and the Mergeris not a penalty. Each The Parties agree to take all actions and execute all documents necessary to effectuate such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of transfer promptly following such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c)termination.
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Pelican Acquisition Corp)
Effect of Termination; Termination Fee. (a) If this Agreement is terminated pursuant to Section 10.1 9.1 hereof, this Agreement shall become void and of no effect with no liability on the part of any party hereto, except that the agreements contained in Sections 10.3(b9.4(b), 9.4(c) and (c) and 11.4 10.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant to any provision in Section 10.1.
(b) If this Agreement shall be terminated pursuant to clause (d), (e), (f), (g), (h), (j) or (mi) in Section 10.19.1, then (i) ARS LandCare shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster a termination fee equal to the sum of (i) $3.25 million and 7,577,045 plus (ii) ServiceMaster shall be entitled $0.44 multiplied by the aggregate number of shares of LandCare Common Stock (other than any shares of LandCare Common Stock issued upon the exercise of LandCare Stock Options) issued subsequent to the date hereof and on or prior to the date of termination fee in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this AgreementAgreement pursuant to Section 9.1. In no event shall ARS LandCare be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c9.4(b).
(c) If this Agreement shall be terminated by ServiceMaster pursuant to clause (g) or (i) its termination rights in Section 10.15.6(e), then (except as otherwise specified LandCare shall promptly, but in Section 10.3(b)) ARS shall no event later than two business days after the date of such termination, pay ServiceMaster an amount, not to exceed $1,000,000, equal to the reasonable actual and reasonably documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARSLandCare and incurred since October 15, 1998, including negotiation and execution of this Agreement and the attempted completion of the Offer Merger, which fee and the Merger. Each such expense amount shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that payable in the event ARS shall cash in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c)same day funds. In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c).
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.MA111ECA.WPD - 48 -
Appears in 1 contract
Sources: Plan of Reorganization and Agreement and Plan of Merger (Landcare Usa Inc)
Effect of Termination; Termination Fee. (a) If In the event of the termination of this Agreement is terminated pursuant to Section 10.1 hereof8.1 (which termination will be effective immediately upon the delivery of written notice of the terminating Party to the other Parties hereto), this Agreement (other than this Section 8.2 (Effect of Termination) and Sections 6.3(b) (Access to Information; Confidentiality), 6.8 (Public Announcements) and 11.1 through 11.10 (Miscellaneous), which shall survive such termination) will forthwith become void and be of no effect with further force and effect, and there will be no liability on the part of Parent, Merger Sub or the Company or any party heretoof their respective officers or directors to the other and all rights and obligations of any Party hereto will cease, except that the agreements contained in Sections 10.3(b) and (c) and 11.4 hereof shall survive the termination hereof and except that no such termination shall nothing herein will relieve any party Party from liability for breach of this Agreement or failure by it any breach, prior to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant to in accordance with its terms, of any provision representation, warranty, covenant or agreement contained in Section 10.1this Agreement.
(b) If In the event of a termination of this Agreement shall be terminated by the Company pursuant to clause (dSection 8.1(f), (f), (h), (j) or (m) in Section 10.1, then (i) ARS the Company shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster Parent a termination fee equal to by wire transfer of same day funds of $3.25 million 6,000,000 concurrent with, and (ii) ServiceMaster shall be entitled as a condition to the termination fee in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this Agreement. In no event shall ARS be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b)effectiveness of, then no additional amount shall be separately payable under Section 10.3(c)such termination.
(c) If this Agreement shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal to In the reasonable and documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition event of ARS, including negotiation and execution a termination of this Agreement by Parent pursuant to Section 8.1(g), the Company shall pay Parent a termination fee by wire transfer of same day funds of (x) $1,000,000 plus (y) Parent’s charges and expenses incurred in connection with the attempted completion transactions contemplated hereby, within two (2) Business Days after such termination and, if the Company enters into a definitive agreement relating to an Acquisition Proposal within twelve (12) months of such termination, then the Offer and the Merger. Each Company shall pay Parent an additional termination fee by wire transfer of same day funds of $5,000,000 (such expense shall additional termination fee to be paid within thirty days after ServiceMaster shall have submitted prior to the written request for payment time of execution of such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (cdefinitive agreement).
(d) If ARS In the event of a termination of this Agreement by Parent pursuant to Section 8.1(h), the Company shall for pay Parent a termination fee by wire transfer of same day funds of (x) $1,000,000 plus (y) Parent’s charges and expenses incurred in connection with the transactions contemplated hereby, within two (2) Business Days after such termination and, if the Company enters into a definitive agreement relating to an Acquisition Proposal within twelve (12) months of such termination, then the Company shall pay Parent an additional termination fee by wire transfer of same day funds of $5,000,000 (such additional termination fee to be paid prior to the time of execution of such definitive agreement).
(e) In the event of a termination of this Agreement by (i) the Company or Parent pursuant to Section 8.1(b) (other than a termination as a result of (A) the failure of the conditions set forth in Section 7.3 or (B) the failure of any reason fail applicable waiting period to make expire or terminate under the payment specified under Section 10.3(bHSR Act or any applicable Foreign Competition Laws) or (ii) Parent pursuant to Section 10.3(c8.1(d), and, in the case of both clauses (i) at and (ii), the Company enters within twelve (12) months of such termination into a definitive agreement relating to an Acquisition Proposal providing for consideration to the holders of Company Stock of greater economic value, taken as a whole, than that which would have been provided pursuant to this Agreement and the transactions contemplated hereby, then the Company shall pay Parent a termination fee by wire transfer of same day funds of $6,000,000, such fee to be paid prior to the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until execution of such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such paymentdefinitive agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Medicis Pharmaceutical Corp)
Effect of Termination; Termination Fee. (a) If In the event of the termination and abandonment of this Agreement is terminated pursuant to Section 10.1 hereof10.1, this Agreement shall become void terminate and of have no effect with no liability on the part of any party heretoeffect, except as otherwise provided herein and except that the agreements contained in Sections 10.3(b) provisions of this Section 10.2, Section 10.5 and (c) and 11.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach Article 11 of this Agreement shall survive any such termination and abandonment.
(b) If, after the date of this Agreement, ▇▇▇▇▇▇▇ terminates this Agreement in accordance with Section 10.1(g) or failure by it Delaware terminates this Agreement pursuant to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentenceSection 10.1(h), ServiceMaster Delaware shall not be obligated to continue pay ▇▇▇▇▇▇▇ a fee of $615,000 as an agreed-upon termination fee in immediately available funds (the Offer “Termination Fee”) within one (1) business day of such termination. In addition, if, after a proposal for an Acquisition Transaction has been publicly announced by any person or entity, ▇▇▇▇▇▇▇ terminates this Agreement pursuant to Section 10.1(d) or Section 10.1(e)(ii), Delaware shall be obligated to pay ▇▇▇▇▇▇▇ the Termination Fee in immediately available funds within one (1) business day of such notice of termination, and if an Acquisition Transaction is consummated or a definitive agreement is entered into by Delaware relating to an Acquisition Transaction, in either case, within eighteen (18) months of the termination of this Agreement pursuant to Section 10.1(e)(ii), Delaware shall be obligated to pay ▇▇▇▇▇▇▇ the Termination Fee, in each case less any provision in Section 10.1.
(b) If amounts previously paid at the time this Agreement shall be terminated pursuant to clause (d), (f), (h), (j) or (m) in Section 10.1, then (i) ARS shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster a termination fee equal to $3.25 million and (ii) ServiceMaster shall be entitled to the termination fee in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this Agreement. In no event shall ARS be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c)was terminated.
(c) Delaware and ▇▇▇▇▇▇▇ agree that the Termination Fee is fair and reasonable in the circumstances. If this Agreement a court of competent jurisdiction shall nonetheless, by a final, nonappealable judgment, determine that the amount of any such Termination Fee exceeds the maximum amount permitted by law, then the amount of such Termination Fee shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal reduced to the reasonable and documented actual out-of-pocket expenses incurred maximum amount permitted by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution of this Agreement and the attempted completion of the Offer and the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that law in the event ARS shall in good faith raise any question circumstances, as to whether any particular expense is payable determined by ARS under this subsection (c), then ARS shall be entitled to delay payment such court of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c)competent jurisdiction.
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Effect of Termination; Termination Fee. (a) If In the event of termination and abandonment of this Agreement is terminated pursuant to Section 10.1 hereof10.01, this Agreement shall forthwith become void and of have no effect with no liability effect, without any Liability on the part of any party Party hereto; provided, except however, that such termination shall not relieve any Party of Liability for any Damages incurred or suffered by a Party as a result of the agreements contained in Sections 10.3(bintentional and willful breach of another Party of any obligations required to be performed by it prior to such termination. The provisions of Section 9.08, this Section 10.02 and Article XI (other than Section 11.12 thereof) and (c) and 11.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement. The Confidentiality Agreement pursuant to any provision in Section 10.1shall not be affected by a termination of this Agreement.
(b) If In the event that this Agreement shall be is terminated by Seller pursuant to clause (d), (f), (h), (jSection 10.01(d) or (mSection 10.01(f) then, in Section 10.1either case, then (i) ARS Buyer shall promptly, but in no event later than two business days (2) Business Days after the date of such termination, pay ServiceMaster a termination fee or cause to be paid to Seller or its designees an amount equal to $3.25 million and 60,000,000 (iithe “Termination Fee”) ServiceMaster shall be entitled to the termination fee by wire transfer of immediately available funds, it being understood that in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this Agreement. In no event shall ARS Buyer be required to pay the Termination Fee on more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c)occasion.
(c) If this Agreement Except for Seller’s right to seek specific performance pursuant to Section 11.12, to the extent, and subject to the terms and conditions provided therein, Seller’s receipt of the Termination Fee from Buyer pursuant to Section 10.02(b) (or from Guarantor pursuant to the Limited Guaranty) and the payment of any other amounts due pursuant to Section 5.02 (with respect to the confidentiality agreement), the last sentence of Section 5.03(b), Section 5.22(d) and Section 10.02(e) shall be terminated pursuant to clause (g) the sole and exclusive remedy of Seller, whether at law or in equity, in contract, in tort, for strict liability, or otherwise, including any Action, against (i) Buyer and the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of Buyer, and any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of any of the foregoing (the Persons described in this Section 10.110.02(c)(i), then collectively, the “Buyer Group”) for any Damages suffered as a result of (except A) any breach of any representation, warranty, covenant or agreement made or alleged to have been made in connection herewith or in any of the other Transaction Documents, the Commitment Letters, the Sale Leaseback Agreement or the other agreements, instruments and documents contemplated hereby or executed in connection herewith, (B) any failure of Buyer to comply with its obligations under this Agreement or any of the other Transaction Documents, the Commitment Letters, the Sale Leaseback Agreement or the other agreements, instruments or documents contemplated hereby or executed in connection herewith, (C) the failure of the transactions contemplated by this Agreement to be consummated or (D) this Agreement, the Commitment Letters, the Sale Leaseback Agreement or any of the other Transaction Documents, agreements, instruments or documents contemplated hereby or executed in connection herewith (or the abandonment or termination thereof) or the transactions contemplated hereby or thereby or the failure of any such transactions to be consummated or the termination of this Agreement; and (ii) the Sale Leaseback Purchaser and any Financing Source (including Affiliates or agents), lender or prospective lender, lead arranger, arranger, agent or Representative of or to Buyer, including, each party to the Debt Commitment Letter, and their respective Affiliates, and their respective officers, directors, employees, agents, successors and assigns (those under this Section 10.02(c)(ii), the “Lender Group”) and the Seller shall not seek to recover any other monetary damages or seek any other claim at law or in equity with respect thereto.
(d) Notwithstanding anything to the contrary contained herein, neither the Sale Leaseback Purchaser nor any Financing Source or any entity or Person within the Lender Group shall have any liability or obligation to Seller or any of its Affiliates relating to this Agreement, and the Seller (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) hereby waives any rights or claims against any Financing Source in connection with this Agreement, the Sale Leaseback Agreement or any related documentation or any of the transactions contemplated herein or therein (including the Sale Leaseback Financing, any Debt Financing or any Alternative Debt Financing) or in respect of any other related document any of the transactions contemplated hereby or thereby or theory of law or equity (whether in tort, contract or otherwise) or in respect of any oral or written representations made or alleged to be made in connection herewith or therewith and the Seller (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) agrees not to commence any action or proceeding against any Debt Financing Source in connection with this Agreement, the Sale Leaseback Agreement or any related documentation or any of the transactions contemplated herein or therein (including the Sale Leaseback Financing, any Debt Financing or any Alternative Debt Financing) or in respect of any other related document or any of the transactions contemplated hereby or thereby or theory of law or equity and agrees to cause any such action or proceeding asserted by the Seller (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) in connection with this Agreement, the Sale Leaseback Agreement or any related documentation or any of the transactions contemplated herein or therein (including the Sale Leaseback Financing, any Debt Financing or any Alternative Debt Financing), or in respect of any other related document or any of the transactions contemplated hereby or thereby or theory of law or equity against any Debt Financing Source to be dismissed or otherwise terminated. In furtherance and not in limitation of the foregoing waiver, it is acknowledged and agreed that no Debt Financing Source shall have any liability for any claims or damages to the Seller in connection with this Agreement, the Sale Leaseback Agreement or any related documentation or any of the transactions contemplated herein or therein (including the Sale Leaseback Financing, any Debt Financing or any Alternative Debt Financing) or the transactions contemplated hereby or thereby.
(e) Any claim or cause of action based upon, arising out of, or related to this Agreement, the Limited Guaranty, the Equity Commitment Letter, the Debt Commitment Letter or any other Transaction Document may only be brought against Persons that are expressly named as parties hereto or thereto. No former, current or future direct or indirect equity holders, controlling Persons, stockholders, directors, officers, employees, members, managers, agents, Affiliates, general or limited partners or assignees of Seller, Buyer, the Guarantor or any former, current or future direct or indirect equity holder, controlling Person, stockholder, director, officer, employee, member, manager, general or limited partner, Affiliate, agent or assignee of any of the foregoing shall have any Liability or obligation for any of the representations, warranties, covenants, agreements, obligations or Liabilities of Seller or Buyer under this Agreement or of or for any Action based on, in respect of, or by reason of, the transactions contemplated hereby (including the breach, termination or failure to consummate such transactions), in each case whether based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any applicable Law or otherwise specified and whether by or through attempted piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Party or other Person or otherwise.
(f) The Parties acknowledge that the agreements contained in this Section 10.3(b)) ARS 10.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Parties would not enter into this Agreement. Without limiting any other rights of the Seller hereunder, if Buyer fails to pay the Termination Fee when due, and, in order to obtain such payment, Seller commences an Action that results in a final, binding and non-appealable judgment against Buyer for the Termination Fee, Buyer shall pay ServiceMaster an amountto Seller, not to exceed $1,000,000together with the Termination Fee, (A) interest on the Termination Fee from the date of termination of this Agreement at a rate per annum equal to the reasonable rate per annum published in The Wall Street Journal from time to time as the prime lending rate prevailing during any relevant period and documented actual (B) Seller’s out-of-pocket costs and expenses (including reasonable attorneys’ fees) reasonably incurred in connection with such Action. Without limiting Seller’s right to obtain an award of specific performance permitted by ServiceMaster directly attributable to Section 11.12, solely for purposes of establishing the proposed acquisition of ARSbasis for the amount thereof, including negotiation and execution of this Agreement and without in any way increasing the attempted completion amount of the Offer and Termination Fee or expanding the Merger. Each such expense shall circumstances in which the Termination Fee is to be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense paid, it is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish agreed that the particular expense Termination Fee is payable under a liquidated damage, and not a penalty. For the standards specified avoidance of doubt, in this subsection (c). In no event shall any request for additional documentation Buyer be required to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c)pay the Termination Fee on more than one occasion.
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Effect of Termination; Termination Fee. (a) If this Agreement is terminated pursuant to Section 10.1 9.1 hereof, this Agreement shall become void and of no effect with no liability on the part of any party hereto, except that the agreements contained in Sections 10.3(b9.4(b), 9.4(c) and (c) and 11.4 10.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant to any provision in Section 10.1.
(b) If this Agreement shall be terminated pursuant to clause (d), (e), (f), (g), (h), (j) or (mi) in Section 10.19.1, then (i) ARS LandCare shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster a termination fee equal to the sum of (i) $3.25 million and 7,577,045 plus (ii) ServiceMaster shall be entitled $0.44 multiplied by the aggregate number of shares of LandCare Common Stock (other than any shares of LandCare Common Stock issued upon the exercise of LandCare Stock Options) issued subsequent to the date hereof and on or prior to the date of termination fee in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this AgreementAgreement pursuant to Section 9.1. In no event shall ARS LandCare be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c9.4(b).
(c) If this Agreement shall be terminated by ServiceMaster pursuant to clause (g) or (i) its termination rights in Section 10.15.6(e), then (except as otherwise specified LandCare shall promptly, but in Section 10.3(b)) ARS shall no event later than two business days after the date of such termination, pay ServiceMaster an amount, not to exceed $1,000,000, equal to the reasonable actual and reasonably documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARSLandCare and incurred since October 15, 1998, including negotiation and execution of this Agreement and the attempted completion of the Offer Merger, which fee and the Merger. Each such expense amount shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that payable in the event ARS shall cash in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c)same day funds.
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Sources: Plan of Reorganization and Agreement and Plan of Merger (Servicemaster Co)
Effect of Termination; Termination Fee. (a) If In the event of any termination of this Agreement is terminated pursuant to as provided in Section 10.1 hereof5.1, this Agreement shall become void have no further force and of no effect with effect, and there shall be no liability on the part of any either party heretohereto or its officers or directors hereunder, except (i) that the agreements contained in provisions of this Section 5.2 and Sections 10.3(b) 6.3, 6.4, 6.5, 6.6, 6.8, 6.10, 6.11, 6.12 and (c) and 11.4 hereof 6.14 shall survive the termination hereof and except any such termination; (ii) that no such termination this section 5.2 shall not relieve any either party from liability for any willful breach of this Agreement any representation or failure by it warranty set forth herein or any breach prior to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any such termination of this Agreement pursuant to any provision covenant or agreement contained herein, (iii) as provided in Section 10.15.2(b) and (iv) as provided in Section 5.2(c).
(b) If In order for either party hereto to terminate this Agreement shall be terminated pursuant to clause (dSection 5.1(e), (f), (h), (j) or (m) in Section 10.1, then (i) ARS such party shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster a termination fee equal to $3.25 million and (ii) ServiceMaster shall be entitled to the termination other party hereto a break-up fee in the amount specified in this subsection of Two Million Dollars (b$2,000,000) regardless (the “Break-Up Fee”) by means of whether any a wire transfer of immediately available funds to such bank account designated by the other ground for party and such termination shall exist under or be effective upon receipt by reason the non-terminating party of this Agreement. In no event shall ARS be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c)the Break-Up Fee.
(c) If this Agreement the Closing shall not have occurred by the End Date, Purchaser shall pay to Seller the Break-Up Fee by means of a wire transfer of immediately available funds to such bank account designated by Seller within two (2) business days following such date; provided, however, that Purchaser shall not be terminated required to pay to Seller the Break-Up Fee pursuant to clause (gthis Section 5.2(c) or if (i) any of Seller’s representations or warranties that are qualified as to materiality or Material Adverse Effect are untrue, or any of Seller’s representations or warranties that are not so qualified are untrue in Section 10.1any material respect, then as of the date made or as of the End Date (except for any representations or warranties that are untrue as otherwise specified a direct result of Purchaser’s failure to maintain Association Casualty’s license to do business in North Carolina in accordance with Section 10.3(b3.2(c)); (ii) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal to Seller has violated any of the reasonable and documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution covenants or agreements contained in Article III of this Agreement and the attempted completion in any material respect; or (iii) any of the Offer and conditions to Closing contained in Sections 4.2(a) through (i) hereof have not occurred or Seller has failed to execute the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted Non-Competition Agreement referred to in Section 4.2(j) or the written request for payment of such expense except that agreements referred to in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (cSection 4.2(k).
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Effect of Termination; Termination Fee. (a) If this Agreement is terminated pursuant to Section 10.1 9.01 hereof, this Agreement shall become void and of no effect with no liability on the part of any party hereto, except that the agreements contained in Sections 10.3(b) 5.08, 6.01, 9.03(b), 9.03(c), 10.05 and (c) and 11.4 10.07 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant to any provision in Section 10.1.
(b) If this Agreement shall be terminated pursuant to clause (d), (f), (h), (j) or (m) in Section 10.1, then (i) ARS Old Davel shall have terminated this Agreement pursuant to Section 9.01(e) hereof or PhoneTel shall have terminated this Agreement pursuant to Section 9.01(g) hereof, then in either such case, PhoneTel shall (i) promptly, but in no event later than two business days after the date of such termination (or, if terminated by PhoneTel pursuant to Section 9.01(g) hereof, at the time specified in Section 9.01(g)), pay to Old Davel in same day funds a termination fee of $3,000,000 and (ii) promptly following the receipt of documentation with respect thereto, pay to Old Davel in same day funds an amount, not to exceed $1,000,000, equal to the actual and reasonably documented out-of-pocket expenses incurred by Old Davel and Equity Group Investments, Inc. directly attributable to the proposed Transaction, including negotiation and execution of this Agreement and the Financing. In no event shall PhoneTel be required to pay more than one termination fee and reimbursement of expenses pursuant to this Section 9.03(b).
(c) If PhoneTel or Old Davel shall have terminated this Agreement pursuant to Section 9.01 (b) and the condition set forth in Section 8.01(i) shall not then have been satisfied, then Old Davel shall (i) promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster to PhoneTel in same day funds a termination fee equal to of $3.25 million 1,000,000 and (ii) ServiceMaster shall be entitled promptly following the receipt of documentation with respect thereto, pay to PhoneTel in same day funds an amount, not to exceed $500,000, equal to the termination fee in actual and reasonably documented out-of-pocket expenses incurred by PhoneTel directly attributable to the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason proposed Transaction, including negotiation and execution of this Agreement, any redemption or purchase of the PIK Preferred Stock and the Debt Tender. In no event shall ARS Old Davel be required to pay more than one termination fee and reimbursement of expenses pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c).
(c) If this Agreement shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal to the reasonable and documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution of this Agreement and the attempted completion of the Offer and the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c9.03(c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c)ARTICLE X MISCELLANEOUS Section 10.
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Effect of Termination; Termination Fee. (a) If In the event of termination of this Agreement is terminated pursuant to by either Buyer or PFI as provided in Section 10.1 hereof9.1, this Agreement shall forthwith become void and of have no effect with effect, and no party shall have any further obligation or liability on the part of any party heretohereunder except (i) Sections 7.2(c), except that the agreements contained in Sections 10.3(b) 9.2 and (c) and 11.4 hereof 10.3 shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant and (ii) that, notwithstanding anything to the contrary contained in this Agreement, no party shall be relieved or released from any liabilities or damages arising out of its breach of any provision of this Agreement, except as provided in Section 10.19.2(b) and 9.2(c).
(b) If this Agreement shall be terminated pursuant to clause (d)In recognition of the efforts, (f)expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, (h), (j) or (m) in Section 10.1, then (i) ARS shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster parties agree that a termination fee equal to of $3.25 million and 1,000,000 (iithe “Termination Fee”) ServiceMaster shall be entitled paid by PFI to the termination fee Buyer if this Agreement is terminated by PFI pursuant to Section 9.1(g). Except as provided in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this Agreement. In no event shall ARS be Section 9.2(c), if PFI is required to pay more than one termination fee pursuant the Termination Fee hereunder, upon such payment, PFI shall have no further liability for any breach of this Agreement to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c)Buyer.
(c) If In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, if the Buyer delivers the Acceptance Notice the parties agree that a breakup fee of $250,000 (collectively, the “Breakup Fee”) shall be paid by PFI to Buyer if this Agreement is terminated by PFI or Buyer for any reason (other than a termination pursuant to Section 9.1(h)) or the Effective Time is later than Termination Date . In the event that the transactions contemplated herein close prior to Termination Date, the Breakup Fee shall be terminated pursuant returned to clause (g) or (i) PFI. PFI shall deposit the Breakup Fee with the Buyer upon the Buyer’s purchase of the Preferred Stock as contemplated in Section 10.1, then (except 9.5 below. Except as otherwise specified provided in Section 10.3(b9.2(b)) ARS , if PFI is required to pay the Breakup Fee hereunder, upon such payment, PFI shall pay ServiceMaster an amount, not to exceed $1,000,000, equal to the reasonable and documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution have no further liability for any breach of this Agreement and the attempted completion of the Offer and the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c)Buyer.
(d) If ARS PFI fails to pay all amounts due to Buyer on within three days after receipt of notice from the Buyer of the amounts due, then PFI shall for pay all costs and expenses (including reasonable legal fees and expenses) incurred by Buyer in connection with any reason fail action or proceeding (including the filing of any lawsuit) taken by it to make the payment specified under Section 10.3(b) or Section 10.3(c) collect such unpaid amounts, together with interest on such unpaid amounts at the time required by that Sectionprime lending rate prevailing at such time, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported published in the Wall Street Journal) on , from the amount remaining unpaid from that time date such amounts were required to be paid until such payment shall be the date actually received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such paymentBuyer.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Pelican Financial Inc)
Effect of Termination; Termination Fee. (a) If this Agreement is terminated pursuant to Section 10.1 9.01 hereof, this Agreement shall become void and of no effect terminate with no liability on the part of any party hereto, except that the agreements contained in Sections 10.3(b) 6.01, 10.04 and (c) and 11.4 10.06 hereof shall survive the termination hereof and the Termination Option Agreement shall survive in accordance with its terms, and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant to any provision in Section 10.1.
(b) If In the event that the Company has willfully failed to perform any of its obligations under this Agreement or has breached as of the date hereof any of its representations or warranties contained herein in any material respect, and, as a result of such failure or such breach, either the Closing shall not have occurred on the date determined pursuant to Section 9.03 hereof or this Agreement shall be have been terminated (including pursuant to clause subsections (d), (f), (h), (je) or (mf) in of Section 10.19.01 hereof), then (i) ARS in any such case, the Company shall promptly, but in no event later than two business days Trading Days after the date of such failure to close or termination, pay ServiceMaster Buyer a termination fee of $40,000,000 plus an amount, not to exceed $1,000,000, equal to $3.25 million Buyer's actual and (ii) ServiceMaster reasonably documented out-of-pocket expenses directly attributable to the proposed acquisition of the Company, including negotiation and execution of this Agreement and the attempted financing and completion of the Merger, which fee and amount shall be entitled to the termination fee payable in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this Agreementsame day funds. In no event shall ARS the Company be required to pay more than one termination fee and reimbursement of expenses pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c9.04(b).
(c) If In the event (i) that the Closing shall not have occurred on the date determined pursuant to Section 9.03 hereof solely due to a failure of the condition set forth in Section 8.01(b) or Section 8.01(c) hereof (with respect to any Antitrust Law) to have been satisfied (other than because of the breach of this Agreement by the Company), (ii) that Buyer has willfully failed to perform any of its obligations under this Agreement or has breached as of the date hereof any of its representations or warranties contained herein in any material respect, and, as a result of such failure or such breach, either the Closing shall not have occurred on the date determined pursuant to Section 9.03 hereof or this Agreement shall be terminated pursuant have been terminated, or (iii) that the election described in the last sentence of Section 7.10(b) hereof shall have been made, then in any such case, Buyer shall promptly, but in no event later than two Trading Days after the date of such failure to close or termination, pay the Company a termination fee of (x) in the case of clause (gi) above, $80,000,000, or (y) in the case of clause (ii) or (iiii) above, $40,000,000, in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster either case plus an amount, not to exceed $1,000,000, equal to the reasonable Company's actual and reasonably documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARSthe Company, including negotiation and execution of this Agreement and the attempted completion of the Offer Merger, which fee and the Merger. Each such expense amount shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that payable in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c)same day funds. In no event shall any request for additional documentation Buyer be required to which ARS shall be entitled under pay more than one termination fee and reimbursement of expenses pursuant to this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (cSection 9.04(c).
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Effect of Termination; Termination Fee. (a) If In the event of the termination and abandonment of this Agreement is terminated pursuant to Section 10.1 hereof10.1, this Agreement shall become void terminate and of have no effect with no liability on the part of any party heretoeffect, except as otherwise provided herein and except that the agreements contained in Sections 10.3(b) provisions of this Section 10.2, Section 10.5 and (c) and 11.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach Article 11 of this Agreement shall survive any such termination and abandonment. Except in the case of fraud or failure by it willful breach, the right to perform its obligations hereunder. Without limiting by implication receive the generality Termination Fee will constitute the sole and exclusive remedy of Norwood against Bankshares and the preceding sentenceBankshares Subsidiaries and their respective directors and officers and shall constitute liquidated damages and not a penalty.
(b) If, ServiceMaster after the date of this Agreement, (i) Bankshares terminates this Agreement pursuant to Section 10.1(h), Bankshares shall not be obligated to continue pay Norwood a fee of $2.4 million as an agreed-upon termination fee in immediately available funds (the Offer “Termination Fee”) within one (1) business day after such termination; or (ii) if after, (A) a proposal for an Acquisition Transaction has been publicly announced by any person or entity and (B) shareholders of Bankshares failed to approve the Merger, Norwood terminates this Agreement pursuant to Section 10.1(g)(A) or (B), Bankshares shall be obligated to pay Norwood the Termination Fee in immediately available funds within one (1) business day after an Acquisition Transaction is consummated or a definitive agreement relating to an Acquisition Transaction is entered into by Bankshares, in each case, within twelve (12) months after the termination of this Agreement pursuant to Section 10.1(d). In each case, Bankshares shall be obligated to pay to Norwood the Termination Fee, less any provision in Section 10.1.
(b) If amounts previously paid at the time this Agreement shall be terminated pursuant to clause (d), (f), (h), (j) or (m) in Section 10.1, then (i) ARS shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster a termination fee equal to $3.25 million and (ii) ServiceMaster shall be entitled to the termination fee in the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason of this Agreement. In no event shall ARS be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c)was terminated.
(c) Bankshares and Norwood agree that the Termination Fee is fair and reasonable in the circumstances. If this Agreement a court of competent jurisdiction shall nonetheless, by a final, nonappealable judgment, determine that the amount of any such Termination Fee exceeds the maximum amount permitted by law, then the amount of such Termination Fee shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal reduced to the reasonable and documented actual out-of-pocket expenses incurred maximum amount permitted by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution of this Agreement and the attempted completion of the Offer and the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that law in the event ARS shall in good faith raise any question circumstances, as to whether any particular expense is payable determined by ARS under this subsection (c), then ARS shall be entitled to delay payment such court of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c)competent jurisdiction.
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Effect of Termination; Termination Fee. (a) If this Agreement is terminated pursuant to Section 10.1 9.01 hereof, this Agreement shall become void and of no effect with no liability on the part of any party hereto, except that the agreements contained in Sections 10.3(b) 5.08, 6.01, 9.03(b), 9.03(c), 10.05 and (c) and 11.4 10.07 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant to any provision in Section 10.1.
(b) If this Agreement shall be terminated pursuant to clause (d), (f), (h), (j) or (m) in Section 10.1, then (i) ARS Old Davel shall have terminated this Agreement pursuant to Section 9.01(e) hereof or PhoneTel shall have terminated this Agreement pursuant to Section 9.01(g) hereof, then in either such case, PhoneTel shall (i) promptly, but in no event later than two business days after the date of such termination (or, if terminated by PhoneTel pursuant to Section 9.01(g) hereof, at the time specified in Section 9.01(g)), pay to Old Davel in same day funds a termination fee of $3,000,000 and (ii) promptly following the receipt of documentation with respect thereto, pay to Old Davel in same day funds an amount, not to exceed $1,000,000, equal to the actual and reasonably documented out-of-pocket expenses incurred by Old Davel and Equity Group Investments, Inc. directly attributable to the proposed Transaction, including negotiation and execution of this Agreement and the Financing. In no event shall PhoneTel be required to pay more than one termination fee and reimbursement of expenses pursuant to this Section 9.03(b).
(c) If PhoneTel or Old Davel shall have terminated this Agreement pursuant to Section 9.01 (b) and the condition set forth in Section 8.01(i) shall not then have been satisfied, then Old Davel shall (i) promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster to PhoneTel in same day funds a termination fee equal to of $3.25 million 1,000,000 and (ii) ServiceMaster shall be entitled promptly following the receipt of documentation with respect thereto, pay to PhoneTel in same day funds an amount, not to exceed $500,000, equal to the termination fee in actual and reasonably documented out-of-pocket expenses incurred by PhoneTel directly attributable to the amount specified in this subsection (b) regardless of whether any other ground for termination shall exist under or by reason proposed Transaction, including negotiation and execution of this Agreement, any redemption or purchase of the PIK Preferred Stock and the Debt Tender. In no event shall ARS Old Davel be required to pay more than one termination fee and reimbursement of expenses pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c9.03(c).
(c) If this Agreement shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal to the reasonable and documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution of this Agreement and the attempted completion of the Offer and the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c).
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Effect of Termination; Termination Fee. (a) Except as otherwise set forth in this Section 7.02, in the event of a termination of this Agreement by either Seller or Purchaser as provided in Section 7.01, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of Purchaser or Seller or their respective officers or directors; provided, however, that the provisions of this Section 7.02, Section 7.03 and Article 8 and the Confidentiality Agreement shall remain in full force and effect and survive any termination of this Agreement; provided, further, that no Party shall be relieved or released from any liabilities or damages arising out of its willful and material breach of any provision of this Agreement.
(b) If this Agreement is terminated pursuant to Section 10.1 hereof7.01(c)(ii), this Agreement then Seller shall become void and of no effect pay Purchaser an amount equal to $4,500,000 (the “Termination Fee”) prior to or concurrently with no liability on the part of any party hereto, except that the agreements contained in Sections 10.3(b) and (c) and 11.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereundertermination. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant to any provision in Section 10.1.
(b) If this Agreement shall be is terminated pursuant to clause Section 7.01 (dd)(i)(B) or Section 7.01(d)(ii), (f), (h), (j) or (m) in Section 10.1, then (i) ARS Seller shall promptly, but in no event later than two business days after pay Purchaser an amount equal to the date Termination Fee within 1 Business Day of such termination. If this Agreement is terminated pursuant to Sections 7.01(b)(i), 7.01(b)(ii), 7.01(d)(i)(C) or 7.01(d)(i)(D) then, in the event that within 12 months of the date this Agreement is terminated, Seller consummates any Takeover Proposal or enters into a Seller Acquisition Agreement with respect to any Takeover Proposal and such Takeover Proposal is consummated (whether during or after such 12 month period) (either such consummated Takeover Proposal shall be referred to as a “Takeover Event Closing”), then Seller shall pay ServiceMaster a termination fee Purchaser the Termination Fee concurrently with such Takeover Event Closing. If this Agreement is terminated pursuant to Section 7.01(d)(i)(A), then Seller shall pay Purchaser an amount equal to $3.25 million and 2,250,000 (iithe “Reduced Termination Fee”) ServiceMaster shall be entitled to the termination fee within 1 Business Day after such termination; provided, that in the event that a Takeover Event Closing subsequently occurs, Seller shall pay Purchaser the Termination Fee (less the amount specified in this subsection (bof the Reduced Termination Fee previously paid) regardless of whether any other ground for termination shall exist under or by reason of this Agreement. In no event shall ARS be required to pay more than one termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c)concurrently with such Takeover Event Closing.
(c) If this Agreement shall be is terminated pursuant to clause (gSections 7.01(b)(i), 7.01(b)(ii), 7.01(c)(ii), 7.01(d)(i) or (i) in Section 10.17.01(d)(ii), then (except as otherwise specified in Section 10.3(b)) ARS Seller shall pay ServiceMaster by wire transfer of same day funds to Purchaser or its designee(s) within one Business Day following the delivery by Purchaser of an amountinvoice therefor, not to exceed $1,000,000, equal to the reasonable and documented actual all out-of-pocket fees and expenses actually incurred by ServiceMaster directly attributable to Purchaser or its Affiliates in connection with the proposed acquisition of ARS, including negotiation and execution of transactions contemplated by this Agreement (the “Purchaser Expenses”). If this Agreement is terminated pursuant to Sections 7.01(b)(iii), and the attempted completion primary cause of the Offer and the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment promulgation of such expense except that in Law or issuance of such Order was an Action initiated by (i) the event ARS shall in good faith raise any question as SEC or (ii) by the stockholders of Seller relating to whether any particular expense is payable by ARS under allegations of breach of fiduciary duties or other allegations of a violation of applicable Law relating to this subsection (c)Agreement or the Transactions, then ARS Seller shall pay by wire transfer of same day funds to Purchaser or its designee(s) within one Business Day following the delivery by Purchaser of an invoice therefor, all Purchaser Expenses. Notwithstanding the foregoing, in no circumstances shall Seller ever be entitled required to delay payment pay more than an aggregate of such expense until ServiceMaster shall supply documentation sufficient $500,000 pursuant to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (cSection 7.02(c).
(d) If ARS In the event that Purchaser shall receive full payment of all amounts owed by Seller pursuant to Sections 7.02(b) and 7.02(c), the receipt of such applicable Termination Fee and/or Purchaser Expenses shall be deemed to be liquidated damages (and not a penalty) for any reason fail and all losses or damages suffered or incurred by Purchaser or any of its Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of Purchaser, any of its Affiliates or any other Person shall be entitled to make bring or maintain any claim, action or proceeding against Seller or any of its Affiliates arising out of or in connection with this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination.
(e) Each of the Parties hereto acknowledge that the agreements contained in this Section 7.02 are an integral part of the Transactions, and that without these agreements, Purchaser would not enter into this Agreement; accordingly, if Seller fails to timely pay any amount due pursuant to this Section 7.02, and, in order to obtain the payment, Purchaser commences a suit which results in a judgment against Seller for the payment specified under set forth in this Section 10.3(b) or Section 10.3(c) at the time required by that Section7.02, then ARS Seller shall pay ServiceMaster Purchaser its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest on demand interest such amount at a per annum rate equal to 300 basis points in excess of the prime rate (as reported published in the The Wall Street Journal) Journal in effect on the amount remaining unpaid from that time until date such payment was required to be made through the date such payment was actually received.
(f) Within 10 Business Days of the date hereof, Purchaser shall open a new bank account and provide Seller with wire transfer instructions to this bank account (the “Default Account”). Any amount due to Purchaser pursuant to this Section 7.02 shall be received paid by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur wire transfer of immediately available funds to enforce its rights the Default Account, or to such paymentother account designated in writing to Seller by Purchaser; provided that, in all circumstances, payment to the Default Account shall satisfy the obligations imposed by this Section 7.02; and, provided, further, that, once opened, Purchaser hereby agrees to keep open and available for wire transfers the Default Account for so long as the potential for a payment to Purchaser under this Article VII remains. For the avoidance of doubt, in no event shall Seller be obligated to pay, or cause to paid, the Termination Fee or the Reduced Termination Fee on more than one occasion.
Appears in 1 contract
Effect of Termination; Termination Fee. (a) If this Agreement is terminated pursuant to Section 10.1 hereof, this Agreement shall become void and of no effect with no liability on the part of any party hereto, except that the agreements contained Except as set forth in Sections 10.3(b8.1(c), 8.1(d) and (c) and 11.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence8.1(e), ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement pursuant under Section 8.1 above will be effective immediately upon the delivery of written notice of the terminating Party to any provision the other parties hereto. In the event of the termination of this Agreement as provided in Section 10.1.
(b) If 8.1, this Agreement shall be terminated pursuant to clause of no further force or effect, except (da) as set forth in this Section 8.2 and Article IX (general provisions, including expenses), (f), (h), (j) or (m) in Section 10.1, then (i) ARS each of which shall promptly, but in no event later than two business days after the date of such termination, pay ServiceMaster a termination fee equal to $3.25 million and (ii) ServiceMaster shall be entitled to survive the termination fee in the amount specified in of this subsection Agreement, and (b) regardless nothing herein shall relieve any Party from liability for any willful breach of whether any other ground for this Agreement. No termination of this Agreement shall exist under or by reason affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive termination of this Agreement. In no the event of a termination of this Agreement by the Company pursuant to Section 8.1(e), the Company shall ARS be required to pay more than one Parent a termination fee of $3,000,000.00 at the time of such termination, and such termination shall not be effective until the termination fee has been paid. In the event of a termination of this Agreement by the Company pursuant to this Section 10.3(b8.1(b)(i) and if any fee shall be payable under this Subsection (other than as a result of Parent’s failure to satisfy the conditions set forth in Sections 6.1(a), (b), then no additional amount shall be separately payable under Section 10.3(c).
(c) If this Agreement shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, equal to the reasonable and documented actual out-of-pocket expenses incurred by ServiceMaster directly attributable to the proposed acquisition of ARS, including negotiation and execution of this Agreement and the attempted completion of the Offer and the Merger. Each such expense shall be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense is payable by ARS under this subsection (c), then ARS shall be entitled (e) or (h)) and a Superior Proposal has been received by the Company prior to delay payment such termination and the Company enters in a definitive agreement relating to such Superior Proposal within six (6) months of such expense until ServiceMaster termination, then the Company shall supply documentation sufficient pay Parent a termination fee of $3,000,000.00, such fee to establish that the particular expense is payable under the standards specified in this subsection (c). In no event shall any request for additional documentation to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c).
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) paid at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until execution of such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such paymentdefinitive agreement.
Appears in 1 contract
Sources: Merger Agreement (United Online Inc)
Effect of Termination; Termination Fee. (ai) If In the event of termination and abandonment of this Agreement is terminated pursuant to Section 10.1 hereof10.01, this Agreement shall forthwith become void and of have no effect with no liability effect, without any Liability on the part of any party Party hereto; provided, except however, that such termination shall not relieve any Party of Liability for any Damages incurred or suffered by a Party as a result of the agreements contained in Sections 10.3(bintentional and willful breach of another Party of any obligations required to be performed by it prior to such termination. The provisions of Section 9.08, this Section 10.02 and Article XI (other than Section 11.12 thereof) and (c) and 11.4 hereof shall survive the termination hereof and except that no such termination shall relieve any party from liability for breach of this Agreement or failure by it to perform its obligations hereunder. Without limiting by implication the generality of the preceding sentence, ServiceMaster shall not be obligated to continue the Offer after any termination of this Agreement. The Confidentiality Agreement pursuant to any provision in Section 10.1shall not be affected by a termination of this Agreement.
(bj) If In the event that this Agreement shall be is terminated by Seller pursuant to clause (d), (f), (h), (jSection 10.01(d) or (mSection 10.01(f) then, in Section 10.1either case, then (i) ARS Buyer shall promptly, but in no event later than two business days (2) Business Days after the date of such termination, pay ServiceMaster a termination fee or cause to be paid to Seller or its designees an amount equal to $3.25 million 60,000,000 (the “Termination Fee”) by wire transfer of immediately available funds, it being understood that in no event shall Buyer be required to pay the Termination Fee on more than one occasion.
(k) Except for Seller’s right to seek specific performance pursuant to Section 11.12, to the extent, and subject to the terms and conditions provided therein, Seller’s receipt of the Termination Fee from Buyer pursuant to Section 10.02(b) (or from Guarantor pursuant to the Limited Guaranty) and the payment of any other amounts due pursuant to Section 5.02 (with respect to the confidentiality agreement), the last sentence of Section 5.03(b), Section 5.22(d) and Section 10.02(e) shall be the sole and exclusive remedy of Seller, whether at law or in equity, in contract, in tort, for strict liability, or otherwise, including any Action, against (i) Buyer and the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of Buyer, and any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of any of the foregoing (the Persons described in this Section 10.02(c)(i), collectively, the “Buyer Group”) for any Damages suffered as a result of (A) any breach of any representation, warranty, covenant or agreement made or alleged to have been made in connection herewith or in any of the other Transaction Documents, the Commitment Letters, the Sale Leaseback Agreement or the other agreements, instruments and documents contemplated hereby or executed in connection herewith, (B) any failure of Buyer to comply with its obligations under this Agreement or any of the other Transaction Documents, the Commitment Letters, the Sale Leaseback Agreement or the other agreements, instruments or documents contemplated hereby or executed in connection herewith, (C) the failure of the transactions contemplated by this Agreement to be consummated or (D) this Agreement, the Commitment Letters, the Sale Leaseback Agreement or any of the other Transaction Documents, agreements, instruments or documents contemplated hereby or executed in connection herewith (or the abandonment or termination thereof) or the transactions contemplated hereby or thereby or the failure of any such transactions to be consummated or the termination of this Agreement; and (ii) ServiceMaster shall be entitled the Sale Leaseback Purchaser and any Financing Source (including Affiliates or agents), lender or prospective lender, lead arranger, arranger, agent or Representative of or to Buyer, including, each party to the termination fee in Debt Commitment Letter, and their respective Affiliates, and their respective officers, directors, employees, agents, successors and assigns (those under this Section 10.02(c)(ii), the amount specified in this subsection (b“Lender Group”) regardless of whether and the Seller shall not seek to recover any other ground monetary damages or seek any other claim at law or in equity with respect thereto.
(l) Notwithstanding anything to the contrary contained herein, neither the Sale Leaseback Purchaser nor any Financing Source or any entity or Person within the Lender Group shall have any liability or obligation to Seller or any of its Affiliates relating to this Agreement, and the Seller (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) hereby waives any rights or claims against any Financing Source in connection with this Agreement, the Sale Leaseback Agreement or any related documentation or any of the transactions contemplated herein or therein (including the Sale Leaseback Financing, any Debt Financing or any Alternative Debt Financing) or in respect of any other related document any of the transactions contemplated hereby or thereby or theory of law or equity (whether in tort, contract or otherwise) or in respect of any oral or written representations made or alleged to be made in connection herewith or therewith and the Seller (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) agrees not to commence any action or proceeding against any Debt Financing Source in connection with this Agreement, the Sale Leaseback Agreement or any related documentation or any of the transactions contemplated herein or therein (including the Sale Leaseback Financing, any Debt Financing or any Alternative Debt Financing) or in respect of any other related document or any of the transactions contemplated hereby or thereby or theory of law or equity and agrees to cause any such action or proceeding asserted by the Seller (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) in connection with this Agreement, the Sale Leaseback Agreement or any related documentation or any of the transactions contemplated herein or therein (including the Sale Leaseback Financing, any Debt Financing or any Alternative Debt Financing), or in respect of any other related document or any of the transactions contemplated hereby or thereby or theory of law or equity against any Debt Financing Source to be dismissed or otherwise terminated. In furtherance and not in limitation of the foregoing waiver, it is acknowledged and agreed that no Debt Financing Source shall have any liability for termination any claims or damages to the Seller in connection with this Agreement, the Sale Leaseback Agreement or any related documentation or any of the transactions contemplated herein or therein (including the Sale Leaseback Financing, any Debt Financing or any Alternative Debt Financing) or the transactions contemplated hereby or thereby.
(m) Any claim or cause of action based upon, arising out of, or related to this Agreement, the Limited Guaranty, the Equity Commitment Letter, the Debt Commitment Letter or any other Transaction Document may only be brought against Persons that are expressly named as parties hereto or thereto. No former, current or future direct or indirect equity holders, controlling Persons, stockholders, directors, officers, employees, members, managers, agents, Affiliates, general or limited partners or assignees of Seller, Buyer, the Guarantor or any former, current or future direct or indirect equity holder, controlling Person, stockholder, director, officer, employee, member, manager, general or limited partner, Affiliate, agent or assignee of any of the foregoing shall exist have any Liability or obligation for any of the representations, warranties, covenants, agreements, obligations or Liabilities of Seller or Buyer under this Agreement or of or for any Action based on, in respect of, or by reason of, the transactions contemplated hereby (including the breach, termination or failure to consummate such transactions), in each case whether based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any applicable Law or otherwise and whether by or through attempted piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Party or other Person or otherwise.
(n) The Parties acknowledge that the agreements contained in this Section 10.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Parties would not enter into this Agreement. In no event shall ARS be required Without limiting any other rights of the Seller hereunder, if Buyer fails to pay more than one the Termination Fee when due, and, in order to obtain such payment, Seller commences an Action that results in a final, binding and non-appealable judgment against Buyer for the Termination Fee, Buyer shall pay to Seller, together with the Termination Fee, (A) interest on the Termination Fee from the date of termination fee pursuant to this Section 10.3(b) and if any fee shall be payable under this Subsection (b), then no additional amount shall be separately payable under Section 10.3(c).
(c) If of this Agreement shall be terminated pursuant to clause (g) or (i) in Section 10.1, then (except as otherwise specified in Section 10.3(b)) ARS shall pay ServiceMaster an amount, not to exceed $1,000,000, at a rate per annum equal to the reasonable rate per annum published in The Wall Street Journal from time to time as the prime lending rate prevailing during any relevant period and documented actual (B) Seller’s out-of-pocket costs and expenses (including reasonable attorneys’ fees) reasonably incurred in connection with such Action. Without limiting Seller’s right to obtain an award of specific performance permitted by ServiceMaster directly attributable to Section 11.12, solely for purposes of establishing the proposed acquisition of ARSbasis for the amount thereof, including negotiation and execution of this Agreement and without in any way increasing the attempted completion amount of the Offer and Termination Fee or expanding the Merger. Each such expense shall circumstances in which the Termination Fee is to be paid within thirty days after ServiceMaster shall have submitted the written request for payment of such expense except that in the event ARS shall in good faith raise any question as to whether any particular expense paid, it is payable by ARS under this subsection (c), then ARS shall be entitled to delay payment of such expense until ServiceMaster shall supply documentation sufficient to establish agreed that the particular expense Termination Fee is payable under a liquidated damage, and not a penalty. For the standards specified avoidance of doubt, in this subsection (c). In no event shall any request for additional documentation Buyer be required to which ARS shall be entitled under this subsection (c) of itself entitle ARS to delay payment of any other expense owed by ARS under this subsection (c)pay the Termination Fee on more than one occasion.
(d) If ARS shall for any reason fail to make the payment specified under Section 10.3(b) or Section 10.3(c) at the time required by that Section, then ARS shall pay ServiceMaster on demand interest at a per annum rate equal to 300 basis points in excess of the prime rate (as reported in the Wall Street Journal) on the amount remaining unpaid from that time until such payment shall be received by ServiceMaster and shall also reimburse ServiceMaster for all attorney's fees and other expenses which ServiceMaster shall reasonably incur to enforce its rights to such payment.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc)