Common use of Fees and Expenses in Termination Clause in Contracts

Fees and Expenses in Termination. (a) If, but only if, the Agreement is terminated: (i) by either Parent or the Company pursuant to Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(d)(i) and the Company (A) receives or has received a bona fide Acquisition Proposal with respect to the Company, which proposal has been publicly announced (and not withdrawn) prior to the date of the Company Stockholder Meeting (with respect to a termination under Section 8.1(b)(iii)) or prior to the termination of this Agreement (with respect to a termination under Section 8.1(d)(i)) and (B) within twelve (12) months of the termination of this Agreement, consummates a transaction regarding, or executes a definitive agreement which is later consummated with respect to, such Acquisition Proposal, then the Company shall pay, or cause to be paid, to Parent the Termination Fee less, if previously paid pursuant to Section 8.3(a)(iii) below, the Expense Amount, by wire transfer of same day funds to an account designated by the Parent, not later than the consummation of such transaction arising from such Acquisition Proposal; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”; (ii) by the Company pursuant to Section 8.1(c)(i), then Parent shall pay, or cause to be paid, to the Company the Expense Amount (by wire transfer to an account designated by the Company) within two (2) Business Days of such termination; (iii) by either Parent or the Company pursuant to Section 8.1(b)(iii) because the Company Stockholder Approval shall not have been obtained, or by Parent pursuant to Section 8.1(d)(i), then the Company shall pay, or cause to be paid, to Parent the Expense Amount (by wire transfer to an account designated by the Company) within two (2) Business Days of such termination; (iv) by the Company pursuant to Section 8.1(c)(ii) then the Company shall pay, or cause to be paid, to Parent the Termination Fee, by wire transfer of same day funds to an account designated by Parent as a condition to the effectiveness of such termination; (v) by Parent pursuant to Section 8.1(d)(ii), then the Company shall pay, or cause to be paid, to Parent the Termination Fee, by wire transfer of same day funds to an account designated by Parent, within two (2) Business Days of such termination; (b) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that: (i) under no circumstance shall the Company or the Parent be required to pay both the Termination Fee and the Expense Amount, or be required to pay the Termination Fee or the Expense Amount, as applicable, on more than one occasion; and (ii) neither Parent nor the Company shall be required to pay any amount in excess of the Termination Fee or the Expense Amount, as applicable, except as set forth in Section 8.3(c) or in the case of such party’s fraud or Willful Breach of this Agreement. (c) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) neither the Termination Fee nor the Expense Amount is a penalty, and (iii) without these agreements, the parties would not enter into this Agreement; accordingly, if Parent or the Company, as the case may be, fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, either Parent or the Company, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, such paying party shall pay the other party its costs and Expenses in connection with such suit, together with interest on such amount at the annual rate of the prime rate of KeyBank National Association in effect on the date of payment for the period from the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.

Fees and Expenses in Termination. (a) 11.3.1 If, but only if, the Agreement is terminated: (i) 11.3.1.1 by either Parent Purchaser or the Company Seller pursuant to Section 8.1(b)(iii) 11.1.1.2 or by Parent Purchaser pursuant to either Section 8.1(d)(i) 7.3.1 or Section 11.1.3.1 and the Company Seller (A) receives or has received a bona fide Acquisition Proposal with respect to the CompanySeller and/or Parent, which proposal has been publicly announced (and not withdrawn) prior to the date of the Company Parent Stockholder Meeting (with respect to a termination under Section 8.1(b)(iii)) 11.1.1.2 or prior to the termination of this Agreement (with respect to a termination under Section 8.1(d)(i)11.1.3.1 or Section 7.3.1) and (B) within twelve (12) months of the termination of this Agreement, consummates a transaction regarding, or executes a definitive agreement which is later consummated with respect to, such Acquisition Proposal, then the Company Seller shall pay, or cause to be paid, to Parent Purchaser an amount equal to Three Million and No/100 Dollars ($3,000,000.00) (the “Seller Termination Fee lessFee”) plus, if not previously paid pursuant to Section 8.3(a)(iii) 11.3.1.3 below, the cost of Purchaser’s actual out of pocket expenses in pursuit of the transactions contemplated by this Agreement but not to exceed Two Hundred Twenty-Five Thousand and No/100 Dollars ($225,000.00) (“Expense Amount”), by wire transfer of same day funds to an account designated by the ParentPurchaser, not later than the consummation of such transaction arising from such Acquisition Proposal; provided, however, that for purposes of this Section 8.3(a)(i)11.3.1.1, the references to “twenty percent (20%)” in the definition of Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”; (ii) 11.3.1.2 by the Company either Purchaser or Seller pursuant to Section 8.1(c)(i)11.1.1.2 because the Parent Stockholder Approval shall not have been obtained, or by Purchaser pursuant to Section 11.1.3.1 then Parent Seller shall pay, or cause to be paid, to the Company Purchaser the Expense Amount (by wire transfer to an account designated by the CompanySeller) within two (2) Business Days of such termination; (iii) 11.3.1.3 by either Parent or the Company Seller pursuant to Section 8.1(b)(iii) because the Company Stockholder Approval shall not have been obtained, or by Parent pursuant to Section 8.1(d)(i), 11.1.2.2 then the Company Seller shall pay, or cause to be paid, to Parent Purchaser the Seller Termination Fee together with the Expense Amount (by wire transfer to an account designated by the Company) within two (2) Business Days of such termination; (iv) by the Company pursuant to Section 8.1(c)(ii) then the Company shall pay, or cause to be paid, to Parent the Termination FeeAmount, by wire transfer of same day funds to an account designated by Parent Purchaser as a condition to the effectiveness of such termination; (v) 11.3.1.4 by Parent Purchaser pursuant to Section 8.1(d)(ii)11.1.3.2, then the Company Seller shall pay, or cause to be paid, to Parent Purchaser the Seller Termination FeeFee (together with the Expense Amount), by wire transfer of same day funds to an account designated by ParentPurchaser, within two (2) Business Days of such termination;. 11.3.2 If this Agreement is terminated by the Seller pursuant to Section 11.1.2.1, then Escrow Agent shall release to Seller an amount equal to the Deposit (the “Purchaser Termination Fee”) by wire transfer of same day funds to one or more accounts designated by Seller within two (2) Business Days of such termination. The Purchaser Termination Fee shall be paid to Seller as liquidated damages, which shall be Seller’s sole and exclusive remedy against Purchaser for Purchaser’s failure to purchase the Property. Seller acknowledges and agrees that (1) the amount of the liquidated damages is a reasonable estimate of and bears a reasonable relationship to the damages that would be suffered and costs incurred by Seller as a result of having withdrawn the Property from sale and the failure of closing to have occurred due to a default of Purchaser under this Agreement; (2) the actual damages suffered and costs incurred by Seller as a result of such withdrawal and failure to close due to a default of Purchaser under this Agreement would be extremely difficult and impractical to determine; (3) Purchaser seeks to limit its liability under this Agreement to the amount of the Deposit in the event this Agreement is terminated and the transaction contemplated by this Agreement does not close due to a default of Purchaser under this Agreement; and (4) the above amount shall be and constitute reasonable and valid liquidated damages. Nothing in this Agreement shall be deemed to limit Purchaser’s liability to Seller (a) with respect to any indemnification or other provision of this Agreement that survives the Closing or termination of this Agreement, and Seller shall retain all rights and remedies, at law or in equity, with respect to those provisions, and (b) in the event that, following any termination of this Agreement, Purchaser or any party affiliated with Purchaser asserts any claims or rights to the Property that might delay or prevent seller from having clear, indefeasible and marketable title to the Property. 11.3.3 Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that: (i) that under no circumstance shall the Company or the Parent be required to pay both the Termination Fee and the Expense Amount, or any party be required to pay the Seller Termination Fee Fee, the Purchaser Termination Fee, or the Expense Amount, as applicable, on more than one occasion; and. (ii) 11.3.4 Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that neither Parent Seller nor the Company Purchaser shall be required to pay any amount in excess of the Seller Termination Fee, the Purchaser Termination Fee or the Expense Amount, as applicable, except as set forth in Section 8.3(c) 11.3.5 or in the case of such party’s fraud or Willful Breach willful breach of this Agreement. (c) 11.3.5 Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 11.3 are an integral part of the transactions contemplated by this Agreement, (ii) neither none of the Seller Termination Fee, the Purchaser Termination Fee nor and the Expense Amount is a penalty, but is a reasonable amount that will compensate Seller or Purchaser, as the case may be, in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, the parties would not enter into this Agreement; accordingly, if Parent Seller or the CompanyPurchaser, as the case may be, fails to timely pay any amount due pursuant to this Section 8.3 11.3 and, in order to obtain such payment, either Parent Seller or the CompanyPurchaser, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.311.3, such paying party shall pay the other party its costs and Expenses in connection with such suit, together with interest on such amount at the annual rate of the prime rate of KeyBank National Association in effect on the date of payment for the period from the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Lawlaw.