Buyer Break-Up Fee Clause Samples
Buyer Break-Up Fee. (i) If Buyer terminates this Agreement for any reason other than For Cause, or if Seller terminates this Agreement For Cause, Buyer shall pay to Seller six hundred thousand dollars ($600,000) (the “Buyer Break-Up Fee”) within five (5) Business Days after the effective date of such termination, which obligation shall survive termination. BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH SELLER’S DAMAGES BY REASON OF TERMINATION OF THIS AGREEMENT BY BUYER OTHER THAN FOR CAUSE OR BY SELLER FOR CAUSE. ACCORDINGLY, BUYER AND SELLER AGREE THAT IS REASONABLE AT SUCH TIME TO AWARD THE BUYER BREAK-UP FEE TO SELLER AS “LIQUIDATED DAMAGES” AND THAT THE AMOUNT OF THE BUYER BREAK-UP FEE IS A FAIR AND REASONABLE ESTIMATE OF THE TOTAL DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S TERMINATION OF THIS AGREEMENT OTHER THAN FOR CAUSE OR SELLER’S TERMINATION OF THIS AGREEMENT FOR CAUSE. SELLER IRREVOCABLY WAIVES AND RELEASES THE RIGHT TO SEEK OR OBTAIN ANY OTHER LEGAL OR EQUITABLE REMEDIES, INCLUDING THE REMEDIES OF DAMAGES AND SPECIFIC PERFORMANCE, FOR BUYER’S TERMINATION OF THIS AGREEMENT OTHER THAN FOR CAUSE OR SELLER’S TERMINATION OF THIS AGREEMENT FOR 73
(ii) As security for Buyer’s obligation to pay the Buyer Break-Up Fee, Buyer shall deposit with the Title Company a letter of credit issued by HomeAmerican Mortgage Corporation, which is an Affiliate of Buyer, or, at Buyer’s option, by a bank or savings and loan association chosen by Buyer and reasonably satisfactory to Seller, in the amount of the Buyer Break-Up Fee, and that names the Title Company as the beneficiary (the “Break-Up Fee Letter of Credit”). The Break-Up Fee Letter of Credit shall be held and administered by the Title Company in accordance with the provisions of this Agreement, shall have an expiration date not earlier than twelve (12) months from the date of issuance, and shall provide for automatic extensions of its expiration date unless the issuer delivers notice not less than sixty (60) days prior to the expiration date that the Break-Up Fee Letter of Credit will not be renewed. Any such notice shall be delivered to the Title Company as the beneficiary under the Letter of Credit, and the Title Company shall provide a copy of the notice to Purchaser and Seller within one (1) Business Day after receiving such notice.
(iii) The Break-Up Fee Letter of Credit shall provide that draws may be made by the Title Company only upon presentation of the Break-Up ...
Buyer Break-Up Fee. Section 14.2(a) of the Purchase Agreement is hereby amended and restated in its entirety as follows:
(a) If Seller terminates this Agreement under Section 14.1(b), (i) Buyer will be liable to Seller for an amount (the “Buyer Break-Up Fee”) equal to the Actual Expenses, and (ii) Seller will immediately join Buyer in delivering written instructions to the Escrow Agent, jointly executed by Buyer and Seller, instructing the Escrow Agent to pay to Buyer from the Buyer Escrow Fund, in accordance with the Buyer Escrow Agreement, the amount of the Buyer Escrow Fund in excess of the sum of the Estimated Excess Operating Expenses at the time of such termination plus one million, five hundred thousand dollars ($1,500,000). Promptly following determination of the final Excess Operating Expenses Calculation Statement in accordance with Section 4.4:
(A) Seller and Buyer will deliver written instructions to the Escrow Agent, jointly executed by Buyer and Seller, instructing the Escrow Agent to pay, in accordance with the Buyer Escrow Agreement, to Seller the amount of the Actual Expenses (as reflected on the final Excess Operating Expenses Calculation Statement) (or the balance of the Buyer Escrow Fund, if less), and to pay, in accordance with the Buyer Escrow Agreement, to Buyer the remaining amount, if any, of the Buyer Escrow Fund after making such payment to Seller; and
(B) if the amount paid to Seller pursuant to Section 14.2(a)(A) is less than the full amount of the Actual Expenses (as reflected on the final Excess Operating Expenses Calculation Statement), Buyer shall promptly remit to Seller payment of the difference between the Actual Expenses and the amount paid to Seller pursuant to Section 14.2(a)(A).