Common use of Expense Sharing Provisions Clause in Contracts

Expense Sharing Provisions. 2.7.1. In the event the Transactions are consummated, the Lead Investor shall cause the Company (or its successor in interests) to reimburse the Investors (excluding a Failing Investor) for, or pay on behalf of all the Investors (excluding a Failing Investor), as the case may be: (i) all out-of-pocket costs and expenses incurred by the Investors (excluding a Failing Investor) as approved by the Lead Investor in writing before incurring such costs and expense (including the reasonable fees and expenses of Advisors retained by an Investor pursuant to Section 2.9.2), and (ii) fees, expenses and disbursements payable to any Joint Advisors as contemplated by Section 2.9.1 (such costs and expenses under this subsections (i) and (ii), the “Transaction Expenses”), provided, that, notwithstanding the foregoing, an Investor that is a Non-Consenting Investor will only be entitled to seek reimbursement in respect of Transaction Expenses, incurred prior to such Investor becoming a Non-Consenting Investor. For the avoidance of doubt, the Transaction Expenses shall commence accruing from the earlier of (x) the date of the Consortium Agreement or (y) the date such Joint Advisors were engaged by the Lead Investor pursuant to the Consortium Agreement. 2.7.2. In the event the Transactions are not consummated (and Section 2.7.3 below does not apply), subject to Sections 2.4, 2.5, 2.13, 2.14 and 4.8, (i) the Lead Investor shall pay the Transaction Expenses, excluding any Parent Termination Fee payable to the Company pursuant to the Merger Agreement (which shall be paid by the Lead Investor or Failing Investors pursuant to Section 2.13 below), and (ii) each Investor (including any Non-Consenting Investor and any Failing Investor) shall bear its own costs and expenses incurred in connection with the Transactions including fees, expenses and disbursements payable to any separate Advisor engaged by such Investor as contemplated by Section 2.9.2, provided, that, notwithstanding the foregoing, an Investor that is a Non-Consenting Investor shall be responsible for, and shall pay, its pro rata portion of the Transaction Expenses incurred or accrued as of the date of its ceasing to be an Investor determined based on such Investor’s pro rata share (in accordance with its Commitment relative to the Commitments of the other Investors), or such a lower amount as otherwise determined in good faith by the Lead Investor. For the avoidance of doubt, such Investor shall not be responsible for any Transaction Expenses incurred or accrued after such time as such Investor becomes a Non-Consenting Investor other than under the circumstances described in Section 2.7.3. 2.7.3. If the Transactions are not consummated due to the unilateral breach of this Agreement by the Failing Investor(s), then such Failing Investor(s) shall, severally (and not jointly or jointly and severally) (a) if the failure of such Failing Investor(s) to fund its Commitment in accordance with the Equity Commitment Letter or the Support Agreement, or its assertion in writing of its unwillingness to fund its Commitment in accordance with the Equity Commitment Letter or the Support Agreement, or its material breach of this Agreement was the primary cause of the termination giving rise to the obligation to pay the Parent Termination Fee, pay any Parent Termination Fee payable to the Company pursuant to the Merger Agreement and (b) reimburse any non-Failing Investors for all of their out-of-pocket costs and expenses incurred in connection with the Transactions, including (i) the Transaction Expenses, (ii) any fees, expenses and disbursements payable to separate Advisors retained by such non-Failing Investors pursuant to Section 2.9.2, and (iii) any guarantee pursuant to the Limited Guarantee, if the guarantee is enforced before the Parent Termination Fee is fully paid by the Failing Investors, in each case without prejudice to any rights and remedies otherwise available to such non-Failing Investors, provided, that, notwithstanding the foregoing, an Investor that is a Non-Consenting Investor will only be entitled to seek reimbursement in respect of Transaction Expenses, incurred prior to such Investor becoming a Non-Consenting Investor.

Expense Sharing Provisions. 2.7.1. In the event the Transactions are consummated, the Lead Investor Investors shall cause Parent and/or the Company (or its successor in interestssuccessor) to reimburse the Investors (excluding a Failing Investor) for, or pay on behalf of all the Investors (excluding a Failing Investor), as the case may be: (i) , all of their out-of-pocket costs and expenses incurred in connection with the Transactions (other than, with respect to any Investor, as a result of the fraud or willful breach by the Investors (excluding a Failing such Investor) as approved by the Lead Investor in writing before incurring such costs and expense (), including the reasonable fees and expenses of Advisors retained by an Investor pursuant to Section 2.9.2), and (ii) fees, expenses and disbursements payable to any of Joint Advisors as contemplated retained by Section 2.9.1 the Investors (but excluding the fees and costs of any separate Advisors who were retained by an Investor unless and only to the extent such costs appointment and expenses under this subsections (iare agreed to in advance in writing by all of the Lead Investors to be treated as the transaction expenses of the Investors) and all the fees and expenses contemplated under Section 2(b) and Section 2(d) of the Termination Agreement executed on June 24, 2020 (ii)collectively, the “Transaction Expenses”), provided, that, notwithstanding the foregoing, an Investor that is a Non-Consenting Investor will only be entitled to seek reimbursement in respect of Transaction Expenses, incurred prior to such Investor becoming a Non-Consenting Investor. For the avoidance of doubt, the Transaction Expenses shall commence accruing from the earlier of (x) the date of the Consortium Agreement or (y) the date such Joint Advisors were engaged by the Lead Investor pursuant to the Consortium Agreement. 2.7.2. In the event the Transactions are Transaction is not consummated (and Section 2.7.3 below does not apply), subject to Sections 2.4, 2.5, 2.13, 2.14 and 4.84.3, (i) the Lead Investor shall pay the Transaction Expenses, excluding any Parent Termination Fee payable to the Company pursuant to the Merger Agreement (which shall be paid by the Lead Investor or Failing Investors pursuant to Section 2.13 below), and (ii) each Sponsor Investor (including any Non-Consenting Investor and any Failing InvestorInvestors) shall bear its own costs and expenses incurred in connection with agrees to share ratably among the Transactions including fees, expenses and disbursements payable to any separate Advisor engaged by such Investor as contemplated by Section 2.9.2, provided, that, notwithstanding the foregoing, an Investor that is a Non-Consenting Investor shall be responsible for, and shall pay, its pro rata portion of the Transaction Expenses incurred or accrued as of the date of its ceasing to be an Investor determined Sponsor Investors based on such Sponsor Investor’s pro rata share (in accordance with its Commitment relative to the Commitments of the other Sponsor Investors)) or as may otherwise be agreed among the Sponsor Investors, or such a lower amount as otherwise determined in good faith by the Lead Investor. For the avoidance of doubt, such Investor shall not be responsible for any Transaction Expenses incurred prior to or accrued after such time as such in connection with the termination of the Transaction, but excluding any termination fee payable to the Company pursuant to the Merger Agreement (which shall be paid by the Sponsor Investors or Failing Investors pursuant to Section 2.13 below), provided, that, notwithstanding the foregoing, a Sponsor Investor becomes that is a Non-Consenting Investor other than under the circumstances described in Section 2.7.3will only be responsible for its proportionate share of Transaction Expenses incurred prior to such Sponsor Investor becoming a Non-Consenting Investor. 2.7.3. If the Transactions are Transaction is not consummated due to the unilateral breach of this Agreement by the Failing Investor(s), then such Failing Investor(s) shall, severally (and not jointly or jointly and severally) (a) if the failure of such Failing Investor(s) to fund its Commitment in accordance with the Equity Commitment Letter or the Support Agreement, or its assertion in writing of its unwillingness to fund its Commitment in accordance with the Equity Commitment Letter or the Support Agreement, or its material breach of this Agreement was the primary cause of the termination giving rise to the obligation to pay the Parent Termination Fee, pay any Parent Termination Fee payable to the Company pursuant to the Merger Agreement and (b) shall reimburse any non-Failing Investors for all of their out-of-pocket costs and expenses incurred in connection with the Transactions, including (i) the such unpaid Transaction Expenses, (ii) any fees, expenses and disbursements termination fee payable to the Company pursuant to the Merger Agreement, or any guarantee pursuant to the Limited Guarantees and any fees and expenses of any separate Advisors who were retained by such non-Failing Investors pursuant to Section 2.9.2in connection with the Transaction, and (iii) any guarantee pursuant to the Limited Guarantee, if the guarantee is enforced before the Parent Termination Fee is fully paid by the Failing Investors, in each case without prejudice to any rights and or remedies otherwise available to such non-Failing Investors, provided, that, notwithstanding the foregoing, an Investor that is a Non-Consenting Investor will only be entitled to seek reimbursement in respect of Transaction Expenses, incurred prior to such Investor becoming a Non-Consenting Investor.