SEC Filings

8-K
ENVISION HEALTHCARE CORP filed this Form 8-K on 08/10/2017
Entire Document
 


ARTICLE XI

MISCELLANEOUS

11.1 Remedies.

(a) The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such failure to perform or breach. Accordingly, except as provided in Section 11.1(d), the parties hereto acknowledge and hereby agree that in the event of any breach or threatened breach by Seller and/or the Company, on the one hand, or Buyer, on the other hand, of any of their respective covenants or obligations set forth in this Agreement, Buyer, on the one hand, and Seller and/or the Company, on the other hand, shall be entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement by the other (as applicable), and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other (as applicable) under this Agreement, without proof of actual damages or inadequacy of legal remedy and without bond or other security being required, and this right shall include the right of Seller and the Company to cause Buyer to fully enforce the terms of the Commitment Letters, including by requiring Buyer to file one or more lawsuits against the Financing Sources to fully enforce the Financing Sources’ obligations under the Commitment Letters. Except as provided in Section 11.1(d) the pursuit of specific enforcement or other equitable remedies by any party hereto will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy (whether at law or in equity) to which such party may be entitled at any time. Notwithstanding anything herein to the contrary, if Seller or the Company commences a lawsuit that results in a judgment against Buyer to specifically enforce (i) Buyer’s obligations under this Agreement or (ii) Buyer’s obligations under the terms of the Commitment Letters, Buyer shall pay to Seller and the Company the costs and expenses (including attorneys’ fees) of Seller and the Company in connection with such lawsuit.

(b) Any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise at any time of any other remedy.

(c) Each of Seller and the Company, on the one hand, and Buyer, on the other hand, hereby agrees not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of this Agreement by Seller or the Company or Buyer, as applicable, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the Seller, the Company or Buyer, as applicable, under this Agreement. The parties hereto further agree that, except as provided in Section 11.1(d), (i) by seeking the remedies provided for in this Section 11.1, a party shall not in any respect waive its right to seek at any time any other form of relief that may be available to a party under this Agreement (including monetary damages) in the event that this Agreement has been terminated or in the event that the remedies provided for in this Section 11.1 are not available or otherwise are not granted, and (ii) nothing set forth in this Section 11.1 shall require any party hereto to institute any proceeding for (or limit any party’s right to institute any proceeding for) specific performance under this Section 11.1 prior or as a condition to exercising any termination right under Article IX (and pursuing monetary damages after such termination to the extent permitted by Section 9.3 and Section 9.5), nor shall the commencement of any legal proceeding pursuant to this Section 11.1 or anything set

forth in this Section 11.1 restrict or limit any party’s right to terminate this Agreement in accordance with the terms of Article IX or pursue any other remedies under this Agreement that may be available then or thereafter.

 

-82-