Common use of Payments; Default Clause in Contracts

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 are an integral part of the Transaction, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it 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 Transaction. Accordingly, if the Company fails to promptly pay any amount due pursuant to Section 9.3(b) and, in order to obtain such payment, the Purchaser commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b) or any portion thereof, the Company will pay to the Purchaser its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”).

Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 9.3 8.3 are an integral part of the TransactionTransactions, (ii) each of the Parent Termination Fee and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather is liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount Company or Parent, as the case may be, in the circumstances in which it such fee is payable 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 Transactiontransactions contemplated hereby, 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 the Company either Party fails to promptly pay any amount due pursuant to Section 9.3(b8.3(b) or Section 8.3(c) and, in order to obtain such payment, the Purchaser recipient Party commences a Legal Proceeding that results in a judgment against the Company non-paying Party for the amount set forth in Section 9.3(b) 8.3 or any portion thereof, the Company will non-paying Party shall pay to the Purchaser its recipient Party the recipient Party’s reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 7.3 are an integral part of the TransactionMerger, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it 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 Transaction. Accordingly, if the Company either Party fails to promptly pay any amount as and when due pursuant to this Section 9.3(b) 7.3 and, in order to obtain such payment, the Purchaser payee Party commences a Legal Proceeding that results in a judgment against the Company payor Party for the amount applicable payment set forth in this Section 9.3(b) 7.3 or any portion thereof, the Company payor Party will pay to the Purchaser payee Party its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the payee Party and its Representatives in connection with such Legal Proceeding, together with interest on the amount of such amount payment or portion thereof accruing at the annual rate of 5% equal to 500 basis points plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a such lesser rate that is the maximum permitted by applicable Law Legal Requirements (collectively, the “Enforcement Expenses”). In no event will the Enforcement Expenses payable by Parent and Merger Sub, on the one hand, or the Company, on the other hand, exceed $3,000,000 (the “Recovery CostsEnforcement Expense Cap”). All payments under this Section 7.3 shall be made by the payor Party to the payee Party by wire transfer of immediately available funds to an account designated in writing by the payee Party.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 ‎8.3 are an integral part of the TransactionMerger, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, . Each of the Parties further acknowledge and agree that the payment of the Parent Termination Fee by Parent or the Company Termination Fee or Expense Reimbursement, ifby the Company, as and when required applicable, pursuant to this Section 9.3, ‎8.3 shall not constitute a penalty, but rather will be liquidated damages, and damages in a reasonable amount that will compensate the Party receiving such amount Company and the Buyer Parties, as applicable, in the circumstances in which it such fee is payable payable, for any losses, liabilities, damages, costs, expenses or obligations, including 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 Transactiontransactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Accordingly, if If the Company or Parent, as the case may be, fails to promptly pay any amount due pursuant to Section 9.3(b‎8.3(b) or Section ‎8.3(c), as applicable, and, in order to obtain such payment, Parent or the Purchaser Company, as the case may be, commences a Legal Proceeding that results in a final and non-appealable judgment against the Company or Parent, as the case may be, for the payment of the amount set forth in Section 9.3(b‎8.3(b) or Section ‎8.3(c), as applicable, or any portion thereof, then the Company will party ordered to make such payment shall pay or cause to be paid to the Purchaser other party or parties, as applicable, its or their reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof due pursuant to Section ‎8.3(b) at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law law (the amounts described in this sentence, the “Recovery Enforcement Costs”); provided that no event shall the Enforcement Costs payable by the Company or Parent, as applicable, pursuant to this Section 8.3(e) exceed $2,000,000 in the aggregate. All payments under this Section ‎8.3 shall be made by the Company to Parent (as directed by P▇▇▇▇▇) or Parent to the Company (as directed by the Company), as applicable, by wire transfer of immediately available funds to the account designated in writing by Parent or the Company (which account information may be updated by Parent or the Company by written notice to the other party from time to time), as applicable.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.4 are an integral part of the TransactionMerger, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement. In light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, and, therefore, the parties acknowledge that the Company Termination Fee or Expense Reimbursement(and any Enforcement Costs, ifif any), as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which such fee and/or costs become payable, constitutes a reasonable estimate of the losses or damages that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages (in the event it is payable and paid) in a reasonable amount to compensate Parent in the circumstances in which such fee and/or costs are 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 Transactiontransactions contemplated by this Agreement, which amount would otherwise be difficult to calculate with any precision, and is not a penalty. Accordingly, if the Company fails to promptly pay any amount due pursuant to Section 9.3(b8.4(a) and, in order to obtain such payment, the Purchaser Parent commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b8.4(a) or any portion thereof, the Company will pay to the Purchaser Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Legal Proceeding, together with interest on such up to a maximum amount or portion thereof at the annual rate of 5% plus the prime rate $500,000.00 (as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually receivedapplicable, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Company Termination Fee Enforcement Costs”). All payments under this Section 8.4 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.3 are an integral part of the Viking Transaction, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee, Change of Recommendation Termination Fee, Acquisition Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee, Change of Recommendation Termination Fee, Acquisition Termination Fee or Expense Reimbursement, if, as and when required to be paid pursuant to this Section 9.38.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it 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 Viking Transaction. Accordingly, if the Company fails to promptly timely pay any amount due pursuant to Section 9.3(b8.3(b) and, in order to obtain such payment, the Purchaser commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b8.3(b) or any portion thereof, the Company will shall pay to the Purchaser its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.3 are an integral part of the Transaction, Merger and that the damages resulting from the termination each of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Parent Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall is not constitute a penalty, but rather is liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in Company and the circumstances in which it is payable Company Related Parties or Parent and the Parent Related Parties, as applicable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement Agreement, which amounts would otherwise be impossible to calculate with precision, and on that, without these agreements, the expectation of the consummation of the TransactionParties would not enter into this Agreement. Accordingly, if Parent, on the Company fails to promptly pay any amount due pursuant to Section 9.3(b) andone hand, in order to obtain such paymentor the Company, on the Purchaser other hand, commences a Legal Proceeding that results in a judgment against seeks to obtain payment of the Company for the amount set forth in Section 9.3(b) or any portion thereofTermination Fee, the Company will Parent Expenses or Parent Termination Fee, as applicable, the non-prevailing party shall pay to the Purchaser prevailing party its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that (i) the agreements contained in this Section 9.3 8.3 are an integral part of the TransactionMerger, (ii) each of the Parent Termination Fee and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather is liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount Company or Parent, as the case may be, in the circumstances in which it such fee is payable 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 Transactiontransactions contemplated hereby, 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 the Company either Party fails to promptly pay any amount due pursuant to Section 9.3(b8.3(b), Section 8.3(c) or Section 8.3(d) and, in order to obtain such payment, the Purchaser recipient Party commences a Legal Proceeding that results in a judgment against the Company non-paying Party for the amount set forth in Section 9.3(b8.3(b), Section 8.3(c) or Section 8.3(d) or any portion thereof, the Company will non-paying Party shall pay to the Purchaser its recipient Party the recipient Party’s out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 7.3 are an integral part of the TransactionMerger, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it 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 Transaction. Accordingly, if the Company a Party that is required to make a payment under this Section 7.3 (a “Breaching Party”) fails to promptly pay any amount as and when due pursuant to this Section 9.3(b7.3 (an “Owed Amount”) and, in order to obtain such payment, the Purchaser Party to which such amount is owed (the “Non-Breaching Party”) commences a Legal Proceeding that results in a judgment against the Company Breaching Party for the amount set forth in Section 9.3(b) or any portion thereofan Owed Amount, the Company Breaching Party will pay to the Purchaser Non-Breaching Party its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Non-Breaching Party in connection with such Legal Proceeding, together with interest on the amount of such amount payment or portion thereof accruing at the annual rate of 5% plus equal to the prime rate rate, plus three percent (3%) as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through to (but excluding) the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law Legal Requirements (collectively, the “Recovery CostsEnforcement Expenses”). All payments under this Section 7.3 shall be made by wire transfer of immediately available funds to an account designated in writing by the Non-Breaching Party.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 7.3 are an integral part of the TransactionMerger, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it 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 Transaction. Accordingly, if the Company either Party fails to promptly pay any amount as and when due pursuant to this Section 9.3(b) 7.3 and, in order to obtain such payment, the Purchaser payee Party commences a Legal Proceeding that results in a judgment against the Company payor Party for the amount applicable payment set forth in this Section 9.3(b) 7.3 or any portion thereof, the Company payor Party will pay to the Purchaser payee Party its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the payee Party and its Representatives in connection with such Legal Proceeding, together with interest on the amount of such amount payment or portion thereof accruing at the annual rate of 5% plus equal to the prime rate rate, plus 3% as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through to (but excluding) the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law Legal Requirements (collectively, the “Enforcement Expenses”). In no event will the Enforcement Expenses payable by Parent and Merger Sub, on the one hand, or the Company, on the other hand, exceed $4,000,000 (the “Recovery CostsEnforcement Expenses Cap”). All payments under this Section 7.3 shall be made by the payor Party to the payee Party by wire transfer of immediately available funds to an account designated in writing by the payee Party.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.5 are an integral part of the Transactiontransactions contemplated by this Agreement, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore. In light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, the Company Parties acknowledge that the Parent Termination Fee or Expense Reimbursement(and any Enforcement Costs, ifif any), as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which such fee and/or costs become payable, constitutes a reasonable estimate of the losses or damages that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages (in the event it is payable and paid) in a reasonable amount to compensate the Company in the circumstances in which such fee and/or costs are 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 Transactiontransactions contemplated by this Agreement, which amount would otherwise be difficult to calculate with any precision, and is not a penalty. Accordingly, if the Company Parent fails to promptly pay any amount due pursuant to Section 9.3(b8.5(a) and, in order to obtain such payment, the Purchaser Company commences a Legal Proceeding that results in a judgment against the Company Parent for the amount set forth in Section 9.3(b8.5(a) or any portion thereof, the Company Parent will pay to the Purchaser Company its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Legal Proceeding, up to a maximum amount of $500,000.00 (as applicable, “Parent Termination Fee Enforcement Costs” and together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate Company Termination Fee Enforcement Costs, as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually receivedapplicable, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Enforcement Costs”). All payments under this Section 8.5 shall be made by wire transfer of immediately available funds to an account designated in writing by the Company.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.3 are an integral part of the Casdin Transaction, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee, Change of Recommendation Termination Fee, Acquisition Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter into this Agreement, and, therefore, the Company Termination Fee, Change of Recommendation Termination Fee, Acquisition Termination Fee or Expense Reimbursement, if, as and when required to be paid pursuant to this Section 9.38.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it 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 Casdin Transaction. Accordingly, if the Company fails to promptly timely pay any amount due pursuant to Section 9.3(b8.3(b) and, in order to obtain such payment, the Purchaser commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 9.3(b8.3(b) or any portion thereof, the Company will shall pay to the Purchaser its out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (the “Recovery Costs”)Law.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 9.3 8.3 are an integral part of the Transactionthis Agreement, and that the damages resulting from the termination of this Agreement under circumstances where the Company Termination Fee or Expense Reimbursement is payable are uncertain and incapable of accurate calculation and that, without these agreements, the Parties would not enter have entered into this Agreement, and, therefore, the Company Termination Fee or Expense Reimbursement, if, as and when required pursuant to this Section 9.3, shall not constitute a penalty, but rather liquidated damages, and in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it 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 Transaction. Accordingly, if the Company fails to promptly pay any amount due pursuant to Section 9.3(b8.3(b) and, in order to obtain such payment, the Purchaser Parent commences a Legal Proceeding that results in a judgment against the Company or Parent, as applicable, for the amount set forth in Section 9.3(b8.3(b) or any portion thereof, the Company will shall pay to the Purchaser its Parent all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted by applicable Law (Law. The Parties further acknowledge that the “Recovery Costs”)Company Termination Fee shall not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which the Company Termination Fee is payable thereto, 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 Merger Transactions, which amount would otherwise be impossible to calculate with precision. All payments under this Section 8.3 shall be made by the Company to Parent by wire transfer of immediately available funds to the account set forth on Schedule 8.3.