BE ABANDONED WITHOUT FURTHER ACTION BY SELLER GROUP OR BUYER.
(B)
IN THE EVENT OF TERMINATION OF THIS
AGREEMENT BY BUYER OR SELLER GROUP AS PROVIDED ABOVE IN SECTION 8.1(B), THIS
AGREEMENT SHALL FORTHWITH BECOME VOID AND, SUBJECT TO SECTION 8.4, THERE SHALL
BE NO LIABILITY ON THE PART OF BUYER OR SELLER GROUP (OR THEIR RESPECTIVE
OFFICERS OR DIRECTORS), EXCEPT BASED UPON OBLIGATIONS SET FORTH IN SECTION 9.1
HEREOF AND IN THE IMMEDIATELY PRECEDING SENTENCE, AND EXCEPT THAT BUYER SHALL
THEREUPON PROMPTLY RETURN OR DESTROY (AND CAUSE ITS AGENTS AND REPRESENTATIVES
TO RETURN OR DESTROY) TO SELLER ALL DOCUMENTS (AND COPIES THEREOF) FURNISHED TO
BUYER BY SELLER GROUP AND ALL EXCERPTS THEREFROM AND NOTES RELATED THERETO, AND
BUYER SHALL CONTINUE TO ADHERE TO THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN
SECTION 5.2 HEREOF.
NOTWITHSTANDING THE FOREGOING, TERMINATION OF THIS
AGREEMENT AND ABANDONMENT OF THE TRANSACTIONS CONTEMPLATED HEREBY BY THE PARTIES
PURSUANT TO SECTION 8.1(B) SHALL NOT IN ANY WAY LIMIT OR RESTRICT THE RIGHTS AND
REMEDIES OF ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO THAT HAS VIOLATED OR
BREACHED ANY OF THE REPRESENTATIONS, WARRANTIES, AGREEMENTS OR OTHER PROVISIONS
OF THIS AGREEMENT PRIOR TO TERMINATION HEREOF.
SECTION 8.3
AMENDMENT, EXTENSION AND WAIVER
At any time prior to the Closing Date, the parties hereto may (a) amend this
Agreement, (b) extend the time for the performance of any of the obligations or
other acts of the parties hereto, (c) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (d) waive compliance with any of the agreements or
conditions contained herein.
Except as provided in Section 5.8, this Agreement
may not be amended except by an instrument in writing signed on behalf of all of
the parties hereto.
Any agreement on the part of a party hereto to any
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
SECTION 8.4
TERMINATION FEE
In the event all conditions set forth in Sections 6.1 and 6.3 of this Agreement
have been satisfied prior to July 2, 2003 and Buyer does not or cannot
consummate the transactions contemplated by this Agreement by July 2, 2003, then
Buyer shall pay to Seller a one-time termination fee of $10,000,000. Buyer and
Seller agree that the payment of such fee shall not be a cap on the damages that
Seller Group may have based upon Buyer's failure to close and Seller Group is
not waiving any other rights or remedies they may have in connection therewith.
44
ARTICLE IX
MISCELLANEOUS
SECTION 9.1
FEES AND EXPENSES
Whether or not the transactions contemplated herein are consummated pursuant
hereto, except as otherwise provided herein, each of Seller and Buyer shall pay
its own fees and expenses in connection with, or in anticipation of, this
Agreement and the consummation of the transactions contemplated hereby.
Notwithstanding the foregoing, the parties shall share equally the filing fee
required pursuant to the HSR