Common use of Buyer Termination Fee Clause in Contracts

Buyer Termination Fee. In the event that this Agreement is terminated by (i) any Seller pursuant to Section 10.1(e) or 10.1(f), Buyer shall pay to the Sellers an amount in Dollars equal to $30,000,000 less any amounts otherwise already paid or reimbursed by or on behalf of Buyer hereunder (the “Buyer Termination Fee”) within two Business Days following such termination, by wire transfer in immediately available funds to such account of the Sellers or their respective designees as the Sellers shall have designated in writing. Notwithstanding anything to the contrary in this Agreement, in the event that the Buyer Termination Fee becomes payable, the payment of the Buyer Termination Fee from Buyer pursuant to this Section 10.3 or the guarantees thereof and of the “Additional Obligations” (as defined in the Limited Guarantee) pursuant to the Limited Guarantee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Sellers and their Affiliates against Buyer, Guarantors, the Financing Sources, their respective Affiliates and any of their and their Affiliates’ respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents for the Losses suffered as a result of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, and none of Buyer, Guarantors, the Financing Sources, or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, in the event the Closing does not occur, in no event shall Buyer be subject to (nor shall the Sellers or any of their Affiliates seek to recover) monetary damages in excess of the amount of the Buyer Termination Fee, in the aggregate, for all Losses arising from or in connection with breaches by Buyer of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that the Sellers or any of their Affiliates may have, including for a breach of Article II hereof as a result of the Debt Financing not being available to be drawn down (including the Buyer Termination Fee). In no event shall the Sellers or any of their Affiliates seek to recover monetary damages from any of Buyer’s Affiliates or Representatives (other than as provided in the Limited Guarantee and subject to the limitations therein) or the Financing Sources, whether at law, in equity, in contract, in tort or otherwise, in respect of this Agreement or the transactions contemplated by this Agreement.

Buyer Termination Fee. In the event that this Agreement is terminated by (i) any Seller pursuant to Section 10.1(e) or 10.1(f), The Buyer shall pay to the Sellers an amount in Company a termination fee of One Hundred and Seventy-Five Million Dollars equal to ($30,000,000 less any amounts otherwise already paid or reimbursed by or on behalf of Buyer hereunder 175,000,000) (the “Buyer Termination Fee”) within two Business Days following such termination, if this Agreement is terminated by wire transfer in immediately available funds the Company pursuant to such account of the Sellers Section 8.1(h) or their respective designees as the Sellers shall have designated in writingSection 8.1(i). Notwithstanding anything to the contrary in this Agreement, in In the event that the Buyer Termination Fee becomes payable, the Company shall receive full payment of the Buyer Termination Fee from Fee, the receipt of the Buyer Termination Fee, together with any indemnification or reimbursement owed pursuant to this Section 10.3 5.4(d) or the guarantees thereof and of the “Additional Obligations” (as defined in the Limited Guarantee) pursuant to the Limited Guarantee Section 8.3(e), shall be deemed to be liquidated damages and the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Sellers Company and their Affiliates its Subsidiaries and shareholders against Buyer, Guarantors, the Financing Sources, their respective Affiliates Buyer and any the Transitory Subsidiary and each of their and their Affiliates’ respective former, current, current or future equity holders, controlling persons, directors, officers, employees, agents, general or limited partners, managers, management companies, members, stockholders, managersAffiliates or assignees and any and all former, memberscurrent or future equity holders, controlling persons, directors, officers, Affiliates or agents for the Losses suffered as a result of this Agreement or the failure of the transactions contemplated by this Agreement to be consummatedemployees, and none of Buyeragents, Guarantors, the Financing Sources, or any of their respective former, current, or future general or limited partners, stockholdersmanagers, managersmanagement companies, members, directors, officersstockholders, Affiliates or agents assignees of any of the foregoing, and any and all former, current or future heirs, executors, administrators, trustees, successors or assigns of any of the foregoing, and any Financing Source and each Affiliate, officer, director, employee, controlling person, advisor, agent, attorney or representatives of any Financing Source (each, a “Buyer Related Table of Contents Party”, and collectively, the “Buyer Related Parties”) and no Buyer Related Party shall have any further other liability or obligation relating for any or all losses or damages suffered or incurred by the Company or any other person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and neither the Company nor any other person shall be entitled to bring or maintain any other claim, action or proceeding against the Buyer, the Transitory Subsidiary or any other Buyer Related Party arising out of this Agreement Agreement, any Commitment Letter or the Guarantee, any of the transactions contemplated by this Agreementhereby or any matters forming the basis for such termination. For the avoidance of doubt, in doubt (1) under no circumstances will the event the Closing does not occur, in no event shall Buyer Company be subject entitled to (nor shall the Sellers or any of their Affiliates seek to recover) monetary damages amounts in excess of the amount of the Buyer Termination Fee, Fee (and any payment pursuant to Section 5.4(d) or Section 8.3(e)) and (2) while the Company may pursue both a grant of specific performance in accordance with Section 9.10 and the aggregate, for all Losses arising from or in connection with breaches by Buyer of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that the Sellers or any of their Affiliates may have, including for a breach of Article II hereof as a result payment of the Debt Financing not being available Buyer Termination Fee under this Section 8.3(d), under no circumstances shall the Company be permitted or entitled to be drawn down (including receive both a grant of specific performance that results in a Closing and any portion of the Buyer Termination Fee). In The parties hereto acknowledge and agree that in no event shall the Sellers or any of their Affiliates seek Buyer be required to recover monetary damages from any of Buyer’s Affiliates or Representatives (other pay the Buyer Termination Fee on more than as provided in the Limited Guarantee and subject to the limitations therein) or the Financing Sourcesone occasion, whether at law, in equity, in contract, in tort or otherwise, in respect not the Buyer Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and the transactions contemplated occurrence of different events. Any Buyer Termination Fee due shall be paid to the Company by wire transfer of same-day funds within two Business Days after the date of termination of this Agreement.

Buyer Termination Fee. In the event that 9.3.1 If this Agreement is validly terminated by Seller in accordance with Section 9.1.6, then, promptly, but in any event within ten (i10) any Seller pursuant to Section 10.1(e) or 10.1(f)days after the date of such termination, Buyer shall pay to the Sellers Seller an amount in Dollars cash equal to $30,000,000 less any amounts otherwise already paid or reimbursed by or on behalf of Buyer hereunder 10,000,000.00 (the “Buyer Termination Fee”) within two Business Days following such termination, by wire transfer in of immediately available funds to such an account of the Sellers or their respective designees as the Sellers shall have accounts designated in writingwriting by Seller. Notwithstanding anything If Seller shall be entitled to receive the contrary in this Agreement, in the event that the Buyer Termination Fee becomes payable, the payment of the Buyer Termination Fee from Buyer pursuant to this Section 10.3 or 9.3, the guarantees thereof delivery of such fee shall be deemed to be liquidated damages and not a penalty. Without limiting the rights of Seller pursuant to Section 11.5 and other than in connection with the enforcement of the “Additional Obligations” (as defined in the Limited Guarantee) pursuant to the Limited Guarantee shall be Confidentiality Agreement, the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Sellers Seller, its Affiliates and its and their Affiliates against Buyer, Guarantors, the Financing Sources, their respective Affiliates and any of their and their Affiliates’ respective stockholders, partners, members, officers, directors, employees, controlling persons, agents and Representatives against (i) Buyer and the Sponsor, (ii) the former, currentcurrent and future holders of any equity, partnership or future limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholdersstockholders or assignees of purchaser or the Sponsor, managers(iii) any future holders of any equity, memberspartnership or limited liability company interest, controlling persons, directors, officers, Affiliates or agents for the Losses suffered as a result of this Agreement or the failure of the transactions contemplated by this Agreement to be consummatedemployees, and none of Buyeragents, Guarantorsattorneys, the Financing SourcesAffiliates, or any of their respective formermembers, currentmanagers, or future general or limited partners, stockholdersstockholders or assignees of any of the foregoing or (iv) any Debt Financing Source for any breaches or violations of this Agreement and for all Losses, managersdamages, membersliabilities, directorsobligations, officerscosts or expenses in respect of this Agreement and the transactions contemplated hereby (collectively, Affiliates the “Buyer Group”) for any breaches or agents shall have any further liability or obligation relating to or arising out violations of this Agreement or any other Ancillary Agreement contemplated hereby or thereby, including for any Willful Breach or fraud by any such Persons and for all Losses, damages, liabilities, obligations, costs or expenses in respect of this Agreement and any other Ancillary Agreement shall be (x) to terminate this Agreement in accordance with this Article 9 and collect, if due, the transactions contemplated by Termination Fee or (y) following the termination of this Agreement. For Agreement in circumstances in which the avoidance of doubtTermination Fee is not payable, the Seller’s right to seek monetary damages from Buyer in the event of Buyer’s Willful Breach of this Agreement prior to the Closing does not occur, termination of this Agreement (provided that in no event shall Buyer be subject to monetary damages for Willful Breach of this Agreement in an amount in excess of an amount equal to the Termination Fee). Without limiting the rights of Seller pursuant to Section 11.5 and other than in connection with the enforcement of the Confidentiality Agreement, the Parties further acknowledge and agree that, the aggregate liability of the Buyer Group, under, or related to, this Agreement, shall not exceed an amount equal to the amount of the Termination Fee, whether or not this Agreement is terminated and regardless of the reason for any such termination. Notwithstanding anything to the contrary herein, (nor 1) in no event shall Seller be entitled to receive both (x) a grant of specific performance of Buyer’s obligations to cause the Sellers Equity Financing or consummate the transactions contemplated by this Agreement and (y) payment of the Termination Fee or monetary damages (of any kind whatsoever) in connection with this Agreement or any termination of their Affiliates seek this Agreement, (2) in circumstances in which the Termination Fee is payable, in no event will Seller be entitled to recover) payment of any monetary damages other than payment of the Termination Fee, (3) in circumstances in which the Termination Fee is not payable, payment of any monetary damages prior to termination of this Agreement or in excess of the amount of the Buyer Termination Fee, (4) in the aggregate, for all Losses arising from or in connection with breaches by Buyer of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that the Sellers or any of their Affiliates may have, including for a breach of Article II hereof as a result of the Debt Financing not being available to be drawn down (including the Buyer Termination Fee). In no event shall Seller be entitled to receive payment of both (x) the Sellers or any of their Affiliates seek to recover Termination Fee and (y) monetary damages from any of Buyer’s Affiliates or Representatives and (other 5) in no event will the Termination Fee be payable more than as provided in the Limited Guarantee and subject to the limitations therein) or the Financing Sources, whether at law, in equity, in contract, in tort or otherwise, in respect of this Agreement or the transactions contemplated by this Agreementonce.

Buyer Termination Fee. In the event that (a) If this Agreement is validly terminated by (i) any the Seller pursuant to Section 10.1(e8.1(d)(iii) or 10.1(f(the “Termination Event”), then the Buyer shall promptly, but in no event later than five Business Days after the date of such termination pay or cause to be paid to the Sellers an amount in Dollars Seller, a fee equal to $30,000,000 less any amounts otherwise already paid or reimbursed by or on behalf of Buyer hereunder 4,850,000 (the “Buyer Termination Fee”) within two ); provided, that, notwithstanding the foregoing, the Buyer shall be entitled to proceed with the Closing no later than five Business Days following after such terminationtermination and, if the Buyer elects to proceeds with the Closing, the Buyer shall have no obligation or liability to pay the Termination Fee whatsoever and such termination by wire transfer in immediately available funds to such account the Seller shall be null and void for all purposes under this Agreement. (b) Except for the Buyer, no other Person, including any Affiliate of the Sellers Buyer or any Financing Source Related Party, shall have any liability for any obligation or liability to the Seller or any of its Affiliates or any of its or their respective designees direct or indirect equity holders for a claim for any Loss suffered as the Sellers shall have designated in writing. Notwithstanding anything to the contrary in a result of any breach of this Agreement, in any financing commitment, or the event that the Buyer Termination Fee becomes payable, the payment failure of the Buyer Termination Fee from Buyer pursuant transactions contemplated hereby to this Section 10.3 be consummated, or the guarantees thereof and in respect of the “Additional Obligations” (as defined any oral representation made or alleged to have been made in the Limited Guarantee) pursuant to the Limited Guarantee shall be the sole and exclusive remedy (connection herewith or therewith, whether at lawLaw, in equity, in contract, in tort or otherwise. (c) The parties further acknowledge and agree that any amount payable pursuant to Section 8.3(a) does not constitute a penalty but shall constitute liquidated damages to compensate the Seller. Upon payment of the Sellers and their Affiliates against BuyerTermination Fee, Guarantors, neither the Buyer nor any Financing Sources, their respective Affiliates and any of their and their Affiliates’ respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents for the Losses suffered as a result of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, and none of Buyer, Guarantors, the Financing Sources, Source Related Party or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, in the event the Closing does not occur, in no event shall Buyer be subject to (nor shall the Sellers Seller or any of their its Affiliates seek to recover) monetary damages in excess of the amount of the Buyer Termination Fee, in the aggregate, for all Losses arising from or in connection with breaches by Buyer of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that the Sellers or any of their Affiliates may have, including for a breach of Article II hereof as a result of the Debt Financing not being available to be drawn down whatsoever (including the Buyer Termination Fee). In no event shall the Sellers or any of their Affiliates seek to recover monetary damages from any of Buyer’s Affiliates or Representatives (other than as provided in the Limited Guarantee and subject to the limitations therein) or the Financing Sources, whether at lawLaw, in equity, in contract, in tort or otherwise). Notwithstanding anything to the contrary set forth in this Agreement, payment of the Termination Fee to the Seller shall be the Seller’s and its Affiliates’ sole and exclusive remedy against the Buyer or any lender participating in the Debt Financing and their respective Affiliates as a result of and following a Termination Event, and under no circumstances shall: (i) the Seller or any of its Affiliates be entitled to any non-monetary or other relief against the Buyer or any Financing Source Related Party or any of their respective Affiliates (whether at Law, in respect of this Agreement equity, in contract, in tort or otherwise), unless the transactions contemplated by this Agreement.Seller elects specific performance under Section 9.11 to the extent available (in which case, if the Seller elects specific performance, such specific performance pursuant to Section 9.11 shall be the sole and exclusive remedy against the Buyer, any Financing Source Related Party and their respective Affiliates and neither the Seller nor any other Person shall have any right to, or any right to demand payment of, the Termination Fee or any other amount whatsoever); and (ii) the Buyer be required to pay the Termination Fee on more than one occasion. Section 8.4