Common use of Effect of Certain Waivers of Closing Conditions Clause in Contracts

Effect of Certain Waivers of Closing Conditions. If prior to the Closing any party (the “breaching party”) delivers to the other party (the “waiving party”) written notice of any breach by the breaching party of any representation or warranty contained in this Agreement or any certificate delivered pursuant hereto that the breaching party certifies is reasonably expected to result in Losses in excess of $75 million, and the waiving party proceeds with the Closing, the waiving party shall be deemed to have waived such breach and the waiving party and its successors, assigns and Affiliates shall not be entitled to be indemnified pursuant to Article IX, to xxx for damages or to assert any other right or remedy for any losses arising from any matters relating to such condition or breach (but shall retain any claims with respect to the accuracy of the disclosure contained in the certificate itself), notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto. This Section 2.04 shall apply only if the waiving party has knowledge of the relevant breach as a result of disclosure thereof by the other party in a certificate thereof under Section 2.02(a) or 2.03(a). A breaching party shall be permitted to give notice pursuant to this Section only if, as of the date this Agreement, the breaching party made the applicable representation or warranty in good faith and had no knowledge of such breach and only if such notice shall be accompanied by documentation available to the breaching party that leads it to conclude Losses in excess of $75 million are reasonably expected to result from such breach. Any written notice delivered pursuant to this Section 2.04 shall specifically refer to the fact that it is being delivered pursuant to this Section 2.04 and any such notice shall be deemed a failure of the condition set forth in Section 2.02(a), if the breaching party is Seller, or a failure of the condition set forth in Section 2.03(a), if the breaching party is Purchaser. If, following delivery of a notice under this Section 2.04, the waiving party elects not to close, the waiving party may terminate this Agreement (any such termination to be deemed a termination under Section 8.01) and the breaching party shall, within five days of such termination, pay the waiving party or its designee, in immediately available funds by wire transfer in U.S. dollars, an amount equal to the documented out-of-pocket expenses of such waiving party, including (if Purchaser is the waiving party) Purchaser’s direct and indirect equity holders, incurred in connection with this Agreement and the transactions contemplated hereby and the related financing thereof (including (if Purchaser is the waiving party) all fees and expenses payable to financing sources or hedging counterparties and the Representatives of Purchaser and/or its financing sources).

Effect of Certain Waivers of Closing Conditions. If prior to the Closing any party (the “breaching party”) delivers to Buyers, on the one hand, or the Sellers, on the other party hand (such party, the “waiving party”"WAIVING PARTY") written notice has actual knowledge of any breach by the breaching any other party of any representation representation, warranty or warranty covenant contained in this Agreement or Agreement, the effect of such breach is a failure of any certificate delivered pursuant hereto that condition to the breaching party certifies is reasonably expected to result waiving party's obligations set forth in Losses in excess of $75 million, this Article VIII and the waiving party proceeds with the Closing, the waiving party shall be deemed to have waived such breach and the waiving party and its successors, assigns and Affiliates shall not be entitled to be indemnified pursuant to Article IXX, to xxx for damages or to assert any other right or remedy for any losses arising from any matters relating to such condition or breach (but shall retain any claims with respect to the accuracy of the disclosure contained in the certificate itself)breach, notwithstanding anything to the contrary contained herein in this Agreement or in any certificate delivered pursuant hereto. This Section 2.04 shall apply only ; PROVIDED, HOWEVER, that if prior to Closing the waiving party notifies the other party of such breach in writing (prior to the delivery of a Section 7.7 Notice, if applicable), the waiving party shall not be deemed to have waived such breach if it proceeds with the Closing unless the other party agrees in writing prior to the Closing that such breach has knowledge occurred and the effect of such breach is a failure of any of the relevant conditions to the waiving party's obligations set forth in this Article VIII. Except as provided above, a party shall not be deemed to have waived any breach as a result of disclosure thereof by the other party of any representation, warranty or covenant contained in a certificate thereof under Section 2.02(a) this Agreement or 2.03(a). A breaching party shall be permitted of their rights with respect to give notice pursuant to this Section only if, as of the date this Agreement, the breaching party made the applicable representation or warranty in good faith and had no knowledge of such breach and only if such notice shall be accompanied by documentation available to the breaching party that leads it to conclude Losses in excess of $75 million are reasonably expected to result from indemnification for such breach. Any written notice delivered pursuant to this Section 2.04 shall specifically refer to the fact that it is being delivered pursuant to this Section 2.04 and any such notice shall be deemed a failure of the condition set forth in Section 2.02(a), if the breaching party is Seller, or a failure of the condition set forth in Section 2.03(a), if the breaching party is Purchaser. If, following delivery of a notice under this Section 2.04, the waiving party elects not to close, the waiving party may terminate this Agreement (any such termination to be deemed a termination under Section 8.01) and the breaching party shall, within five days of such termination, pay the waiving party or its designee, in immediately available funds by wire transfer in U.S. dollars, an amount equal to the documented out-of-pocket expenses of such waiving party, including (if Purchaser is the waiving party) Purchaser’s direct and indirect equity holders, incurred in connection with this Agreement and the transactions contemplated hereby and the related financing thereof (including (if Purchaser is the waiving party) all fees and expenses payable to financing sources or hedging counterparties and the Representatives of Purchaser and/or its financing sources).

Effect of Certain Waivers of Closing Conditions. If prior to the Closing any party (the “breaching receiving party”) delivers receives a Notice of Material Breach (as hereinafter defined), then such receiving party may either (i) waive in writing any condition in Article VII applicable to the other party (the “waiving party”) written notice breach specified in such Notice of any breach by the breaching party of any representation or warranty contained Material Breach and elect in this Agreement or any certificate delivered pursuant hereto that the breaching party certifies is reasonably expected its discretion to result in Losses in excess of $75 million, and the waiving party proceeds proceed with the Closing, or (ii) exercise its rights under the waiving applicable provisions of Article VIII of this Agreement. In the event that the receiving party shall be deemed elects in its discretion to have waived such waive the applicable condition and proceed with the Closing as specified in clause (i) above, and if the breach and so specified in the waiving Notice of Material Breach was not, directly or indirectly, the result of any violation of any covenant in this Agreement by the breaching party, then the receiving party and its successors, assigns and Affiliates shall not be entitled following the Closing to be indemnified pursuant to Article IXXI, to xxx for damages or to assert any other right or remedy for any losses arising from the breach specifically identified in such Notice of Material Breach. As used herein, “Notice of Material Breach” shall mean a written notice from any matters relating to such condition or breach party (but shall retain any claims with respect the “breaching party”) to the accuracy of other party(ies) hereto that the disclosure contained in the certificate itself), notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto. This Section 2.04 shall apply only if the waiving breaching party has knowledge of the relevant breach breached a representation or warranty in this Agreement as a result of disclosure thereof by the other party in a certificate thereof under Section 2.02(a) matters, facts, or 2.03(a). A breaching party shall be permitted to give notice pursuant to this Section only if, as of circumstances first arising after the date of this Agreement, the breaching party made the applicable representation or warranty in good faith and had no knowledge of such breach and only if such which notice shall be accompanied by documentation available to specify in detail the breaching party nature, scope, extent, circumstances and facts underlying such material breach, and shall expressly acknowledge that leads it to conclude Losses in excess of $75 million are reasonably expected to result from such breach. Any written notice delivered pursuant to this Section 2.04 shall specifically refer to the fact that it is being delivered pursuant to this Section 2.04 and any such notice shall be deemed a failure material breach has caused one or more of the condition conditions set forth in Section 2.02(a), if the breaching party is Seller, or a failure of the condition set forth in Section 2.03(a), if the breaching party is Purchaser. If, following delivery of a notice under this Section 2.04, the waiving party elects Article VII not to close, the waiving party may terminate this Agreement (any such termination to be deemed a termination under Section 8.01) and the breaching party shall, within five days of such termination, pay the waiving party or its designee, in immediately available funds by wire transfer in U.S. dollars, an amount equal to the documented out-of-pocket expenses of such waiving party, including (if Purchaser is the waiving party) Purchaser’s direct and indirect equity holders, incurred in connection with this Agreement and the transactions contemplated hereby and the related financing thereof (including (if Purchaser is the waiving party) all fees and expenses payable to financing sources or hedging counterparties and the Representatives of Purchaser and/or its financing sources)satisfied.

Effect of Certain Waivers of Closing Conditions. If prior to the Closing any party (the “breaching party”"WAIVING PARTY") delivers to receives written notice from the other party (the “waiving party”) written notice of acknowledging that such party has breached any breach by the breaching party of any representation representation, warranty or warranty covenant contained in this Agreement Agreement, any instrument or certificate furnished hereunder or any certificate delivered pursuant hereto Ancillary Agreement, and that the breaching party certifies effect of such breach is reasonably expected a failure of any condition to result the waiving party's obligations set forth in Losses in excess this Article VI, (a) if such breach arose after the date of $75 million, this Agreement and the waiving party proceeds with the Closing, the waiving party shall be deemed to have waived such breach and the waiving party and its successors, assigns and Affiliates affiliates shall not be entitled to be indemnified pursuant to Article IXVIII, to xxx for damages or to assert any other right or remedy for any losses arising from any matters relating to such condition or breach (but shall retain any claims with respect to the accuracy of the disclosure contained in the certificate itself)breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto. This Section 2.04 shall apply only , and (b) if the waiving party has knowledge of the relevant such breach as a result of disclosure thereof by the other party in a certificate thereof under Section 2.02(a) arose on or 2.03(a). A breaching party shall be permitted prior to give notice pursuant to this Section only if, as of the date of this Agreement, the breaching party made the applicable representation or warranty in good faith and had no knowledge of such breach and only if such notice shall be accompanied by documentation available to the breaching party that leads it to conclude Losses in excess of $75 million are reasonably expected to result from such breach. Any written notice delivered pursuant to this Section 2.04 shall specifically refer to the fact that it is being delivered pursuant to this Section 2.04 and any such notice shall be deemed a failure of the condition set forth in Section 2.02(a), if the breaching party is Seller, or a failure of the condition set forth in Section 2.03(a), if the breaching party is Purchaser. If, following delivery of a notice under this Section 2.04, the waiving party elects not to close, the waiving party may terminate this Agreement (waive the unsatisfied closing condition for the purposes of consummating the Acquisition but without prejudice to any other right or remedy which they may have hereunder for such termination to be deemed a termination under Section 8.01) and breach by the breaching party shall, within five days of such termination, pay the waiving party or its designee, in immediately available funds by wire transfer in U.S. dollars, an amount equal to the documented out-of-pocket expenses of such waiving other party, including (if Purchaser is the waiving party) Purchaser’s direct and indirect equity holders, incurred in connection with this Agreement and the transactions contemplated hereby and the related financing thereof (including (if Purchaser is the waiving party) all fees and expenses payable to financing sources or hedging counterparties and the Representatives of Purchaser and/or its financing sources).