Break Fee and Reverse Break Fee Sample Clauses
Break Fee and Reverse Break Fee
Expenses; Termination Fee (a) All transfer and sales Taxes payable with respect to the sale and conveyance of the Acquired Assets to the Buyer shall be paid by the Seller. All fees and expenses incurred in connection with the preparation, execution and consummation of this Agreement and of the transactions contemplated hereby, including, without limitation, attorneys', accountants' and outside advisers' fees and disbursements, shall be borne by the party incurring such expenses, except as otherwise provided in Section 3.5, whether or not the transactions contemplated hereby are consummated. Without limiting the foregoing, each party shall pay its own costs, in connection with preparing the Xxxx-Xxxxx-Xxxxxx filings referenced herein, it being understood that the Buyer, as the acquiring party, shall be solely responsible for paying the Xxxx-Xxxxx-Xxxxxx filing fees. (b) Notwithstanding subsection (a) above, in the event that (i) a Competing Proposal shall have been made after the date hereof, (ii) thereafter this Agreement is terminated (x) by the Seller prior to June 1, 2001 pursuant to Section 13.1(b), or (y) by the Buyer pursuant to either Section 13.1(b) or Section 13.1(c) (other than where the Buyer relies, as the basis for its termination or its failure to close by the Cutoff Date, solely on (ww) breaches of material covenants with which the Seller could not have complied through the exercise of commercially reasonable efforts and/or (xx) the failure of representations and warranties, which were true in all material respects on the date hereof, to be true in all material respects at or near an anticipated closing date so as to satisfy Section 8.1, where the Seller could not have caused such initially true representations and warranties to satisfy Section 8.1 through the exercise of commercially reasonable efforts), and (iii) prior to, or within 12 months after, such termination any Selling Entity (x) enters into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (an "Acquisition Agreement") which constitutes a Competing Proposal, or is related to, or which is intended to or is reasonably likely to lead to, a Competing Transaction, or (y) consummates a Competing Transaction; then immediately after all conditions (i), (ii) and (iii) above are met, the Seller shall pay to the Buyer a fee equal to Four Million Dollars ($4,000,000) (the "Termination Fee") by wire transfer of same day funds to an account designated by the Buyer. (c) The parties acknowledge that the agreements contained in Section 13.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties would not enter into this Agreement; accordingly, the Buyer shall be entitled to its reasonable out-of-pocket legal fees and expenses incurred to enforce the payment of the Termination Fee and if the Seller fails promptly to pay the Termination Fee when due, the Seller shall be required to pay to the Buyer interest on the Termination Fee from the due date through the payment date at the Prime Rate plus 2%.