Holder Representative Expenses. On or prior to the Closing Date, the Holder Representative may provide to Buyer a written estimate (which estimate shall include such reserves as the Holder Representative determines in good faith to be appropriate for any Holder Representative Expenses that are not then known or determinable) of the aggregate amount of the fees and expenses incurred, or that may in the future be incurred, by the Holder Representative on behalf of the Company, its Subsidiaries and the Selling Members in connection with the preparation, negotiation and execution of this Agreement or the consummation of the transactions contemplated hereby or otherwise in its capacity as the Holder Representative (the “Holder Representative Expenses”). On the Closing Date, Buyer shall pay to the Holder Representative or to such other persons (and in such amounts) as may be designated by the Holder Representative, by wire transfer to an account or accounts designated by the Holder Representative in writing at least two (2) Business Days prior to the Closing Date, immediately available funds in the amount of such estimated Holder Representative Expenses. Whether or not paid on or prior to the Closing Date, no amount shall be included on the Closing Balance Sheet with respect to liabilities for the Holder Representative Expenses.
Holder Representative Expenses. On the Closing Date, Buyer shall pay to an account designated by the Holder Representative immediately available funds in the amount of $200,000 (the “Holder Representative Fund”), which may be used by the Holder Representative for the purposes of paying directly, or reimbursing the Holder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Pre-Closing Holders will not receive any interest or earnings on the Holder Representative Fund and irrevocably transfer and assign to the Holder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Holder Representative will not be liable for any loss of principal of the Holder Representative Fund other than as a result of its gross negligence or willful misconduct. The Holder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Holder Representative’s responsibilities, the Holder Representative will deliver any remaining balance of the Holder Representative Fund (the “Holder Representative Fund Release Amount”) to the Exchange Agent for further distribution to the Pre-Closing Holders; provided, however, that, notwithstanding anything to the contrary in this Agreement, in no event shall the Holder Representative Fund Release Amount become payable to Buyer.. For tax purposes, the Holder Representative Fund will be treated as having been received and voluntarily set aside by the Pre-Closing Holders at the time of Closing. Whether or not paid on or prior to the Closing Date, no amount shall be included on the Closing Balance Sheet with respect to liabilities for the expenses of the Holder Representative, and Buyer and its Affiliates (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) shall have no liability with respect thereto.
Holder Representative Expenses. The Holder Representative shall receive no compensation for service as such but shall receive reimbursement from, and be indemnified from, the Holder Allocable Expenses, by the Holders for any and all expenses, charges and liabilities, including reasonable attorneys’ fees (collectively, the “Holder Representative Expenses”), incurred by the Holder Representative in the performance or discharge of its duties set forth in this Article XI. If the amount of the Holder Allocable Expenses is less than the Holder Representative Expenses, each Holder shall pay to the Holder Representative an amount equal to the product of (a) such Holder’s Pro Rata Share multiplied by (b) the difference between (i) the Holder Representative Expenses and (ii) the Holder Allocable Expenses. In the event that the Holder Allocable Expenses exceed the Holder Representative Expenses, at such time as the Holder Representative determines (in its sole discretion) is appropriate, such excess amount shall be distributed to the Holders with each Holder receiving an amount in cash equal to (x) the balance of such excess, multiplied by (y) such Holder’s Pro Rata Share.
