Common use of Payments; Default Clause in Contracts

Payments; Default. The Parties acknowledge that the agreements contained in this Section 8.3 are an integral part of this Agreement and the Merger, and that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if (i) the Company fails to promptly pay any amount due pursuant to Section 8.3(b) and, in order to obtain such payment, Parent commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 8.3(b) or any portion thereof or (ii) Parent fails to promptly pay any amount due pursuant to Section 8.3(b) and in order to obtain such payment, the Company commences a Legal Proceeding that results in a judgment against Parent for the amount set forth in Section 8.3(b) or any portion thereof, the Company or Parent, as applicable, will pay to Parent or the 72 Company, as applicable, 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 amount or portion thereof at 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. All payments under this Section 8.3 will be made by the Company to Parent (as directed by Parent), or Parent to the Company (as directed by the Company), as applicable, by wire transfer of immediately available funds to (A) with respect to the Antitrust Termination Fee, the account designated in Section 8.3(d) of the Company Disclosure Letter (which account information may be updated by the Company by written notice to Parent from time to time) or (B) with respect to the Company Termination Fee, the account designated by Parent in writing to the Company.

Payments; Default. The Parties Company, Parent and Merger Sub each acknowledge and hereby agree that the agreements contained in provisions of this Section 8.3 7.06 are an integral part of the transactions contemplated by this Agreement and (including the Merger), and that, without these agreementssuch provisions, the Parties Company, Parent and Merger Sub would not enter have entered into this Agreement. Accordingly, if (i) If the Company fails shall fail to promptly pay any amount in a timely manner the amounts due pursuant to Section 8.3(b7.06(a), and, in order to obtain such payment, Parent makes a claim against the Company that results in a judgment against the Company, or Parent shall fail to pay in a timely manner the amounts due pursuant to Section 7.06(b) and, in order to obtain such payment, the Company makes a claim against Parent commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 8.3(b) or any portion thereof or (ii) Parent fails to promptly pay any amount due pursuant to Section 8.3(b) and in order to obtain such paymentParent, the Company commences a Legal Proceeding that results in a judgment against Parent for the amount set forth in Section 8.3(b) or any portion thereof, either the Company or Parent, as applicable, will shall pay to Parent or other party the 72 Company, as applicable, its reasonable and documented out-of-pocket costs and expenses of the other party (including its reasonable and documented attorneys’ feesfees and expenses) incurred or accrued in connection with such Legal Proceedingsuit, together with interest on such amount or portion thereof the amounts set forth in this Section 7.06 at the prime lending rate prevailing during such period as published in The Wall Street Journal in effect (the “Fee Enforcement Expenses”). Any interest payable hereunder shall be calculated on a daily basis from the date that such payment or portion thereof was amounts were required to be made through paid until (but excluding) the date that such payment or portion thereof was actually receivedof actual payment, or and on the basis of a lesser rate that is the maximum permitted by applicable law360-day year. All payments under this Section 8.3 will 7.06 to be made by the Company to Parent (as directed by Parent), or Parent to the Company (as directed by the Company), as applicable, shall be made by wire transfer of immediately available funds to (A) with respect to the Antitrust Termination Fee, the an account designated in writing by Parent, and all payments under this Section 8.3(d) of the Company Disclosure Letter (which account information may 7.06 to be updated made by the Company by written notice to Parent from time to time) or (B) with respect to the Company Termination Fee, the shall be made by wire transfer of immediately available funds to an account designated by Parent in writing to by the Company. The parties acknowledge and agree that in no event shall (i) the Company be obligated to pay the Termination Fee on more than one occasion or (ii) Parent be obligated to pay the Reverse Termination Fee on more than one occasion. The parties hereto also agree that each of the Termination Fee and the Reverse Termination Fee constitutes liquidated damages and not a penalty.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 8.3 ‎8.3 are an integral part of this Agreement and the Merger, and that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if (i) Each of the Parties further acknowledge and agree that the payment of the Parent Termination Fee by Parent or the Company Termination Fee by the Company, as applicable, pursuant to this Section ‎8.3 shall not constitute a penalty, but will be liquidated damages in a reasonable amount that will compensate the Company and the Buyer Parties, as applicable, in the circumstances in which such fee is payable, for any losses, liabilities, damages, costs, expenses or obligations, including the efforts and resources expended and opportunities foregone while negotiating this Agreement in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. If the Company or Parent, as the case may be, fails to promptly pay any amount due pursuant to Section 8.3(b‎8.3(b) or Section ‎8.3(c), as applicable, and, in order to obtain such payment, Parent or the 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 8.3(b‎8.3(b) or any portion thereof or (ii) Parent fails to promptly pay any amount due pursuant to Section 8.3(b) and in order to obtain such payment‎8.3(c), the Company commences a Legal Proceeding that results in a judgment against Parent for the amount set forth in Section 8.3(b) as applicable, or any portion thereof, then the Company party ordered to make such payment shall pay or Parent, as applicable, will pay cause to Parent be paid to the other party or the 72 Companyparties, 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 lawlaw (the amounts described in this sentence, the “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 will ‎8.3 shall be made by the Company to Parent (as directed by Parent), Pxxxxx) or Parent to the Company (as directed by the Company), as applicable, by wire transfer of immediately available funds to (A) with respect to the Antitrust Termination Fee, the account designated in Section 8.3(d) of writing by Parent or the Company Disclosure Letter (which account information may be updated by Parent or the Company by written notice to Parent the other party from time to time) or (B) with respect to the Company Termination Fee), the account designated by Parent in writing to the Companyas applicable.

Payments; Default. The Parties acknowledge that the agreements contained in this Section 8.3 are an integral part of this Agreement and the MergerTransactions, and that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if (i) the Company fails to promptly pay any amount due pursuant to Section 8.3(b) or the Parent fails to promptly pay any amounts due pursuant to Section 8.3(c), and, in order to obtain such payment, Parent the Parent, on the one hand, or the Company, on the other hand, commences a Legal Proceeding that results in a judgment against the Company for the amount set forth in Section 8.3(b) or any portion thereof or (ii) Parent fails to promptly pay any amount due pursuant to Section 8.3(b) and in order to obtain such payment, the Company commences a Legal Proceeding that results in a judgment against the Parent for the amount set forth in Section 8.3(b8.3(c) or any portion thereof, the Company or Parent, as applicable, the Company will pay to the Parent or the 72 Parent will pay to the Company, as applicablethe case may be, 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 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. All payments under Law, and the terms “Company Termination Fee” and “Parent Termination Fee”, as applicable, shall be increased to include any such additional amounts owed pursuant to this Section 8.3 will be made by 8.3(e). Notwithstanding Section 2.7, the Company to Termination Fee or the Parent Termination Fee, as applicable, shall be paid without withholding or deduction for, or on account of, any Taxes. In the event that the Company or the Parent, as applicable, deducts or withholds any amount from the payment of such fees, the Company or the Parent (as directed by Parent), or Parent to the Company (as directed by the Company“Payor”), as applicable, by wire transfer of immediately available funds to (A) with respect shall pay to the Antitrust other Party (the “Other Party”) such additional amounts as may be necessary to ensure that the net amount received by the Other Party after such withholding or deduction (and after deducting or withholding any Taxes on the additional amounts) shall equal the amount that would have been received by the Other Party had no such withholding or deduction been required; provided, however, that to the extent a Tax credit is available in the jurisdiction in which the Other Party is resident in respect of Taxes withheld by the Payor and this credit is available to offset Taxes otherwise payable by the Other Party in such jurisdiction so that the Other Party does not suffer any additional Tax cost as a result of amounts withheld, then no such additional amounts shall be required to be paid. The Other Party agrees to use commercially reasonable efforts to seek such credit. If a withholding tax is imposed on the Payor as a result of an adjustment to Taxes by a Governmental Authority after the payment of the Company Termination Fee or the Parent Termination Fee, the account designated in Section 8.3(d) Other Party agrees to use commercially reasonable efforts to seek any available credit for the withheld tax and, to the extent such credit offsets Taxes of the Company Disclosure Letter Other Party, to pay to the Payor the amount of such credit (which account information may be updated net of any reasonable out-of-pocket costs (including Taxes) incurred by the Company by written notice to Parent from time to time) or (B) with Other Party in respect to the Company Termination Fee, the account designated by Parent in writing to the Companyof such credit).

Payments; Default. The Parties acknowledge that (i) the fees and other agreements contained in this Section 8.3 8.02(b) are an integral part of the transactions contemplated by this Agreement and Agreement, (ii) neither the MergerCompany Termination Fee nor Parent Termination Fee is a penalty, but rather liquidated damages in a reasonable amount that will compensate the other Party in the circumstances in which such fee is payable, and that, (iii) without these agreements, the Parties would not enter into this Agreement. Accordingly, if (i) the Company either Party fails to promptly pay any amount due pursuant to Section 8.3(b8.02(b) and, in order to obtain such payment, Parent commences the payee Party brings a Legal Proceeding Claim that results in a judgment against the Company payor Party for the amount set forth in Section 8.3(b) or any portion thereof or (ii) Parent fails to promptly pay any amount due pursuant to Section 8.3(b) and in order to obtain such payment, the Company commences a Legal Proceeding that results in a judgment against Parent for the amount set forth in Section 8.3(b8.02(b) or any portion thereof, the Company or Parent, as applicable, payor Party will pay to Parent or the 72 Company, as applicable, payee Party its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Legal ProceedingClaim, together with interest on such amount or portion thereof at the prime rate as published in The 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 lawLaw (the “Enforcement Expenses”). The Parties acknowledge and agree that in no event shall the Company or Parent, as applicable, be required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one occasion. All payments under this Section 8.3 will 8.02 shall be made by the Company to Parent (as directed by Parent), or Parent payor Party to the Company (as directed by the Company), as applicable, payee Party by wire transfer of immediately available funds to (A) with respect to the Antitrust Termination Fee, the an account designated in writing by the payee Party. While a Party may pursue both a grant of specific performance in accordance with Section 8.3(d) 9.10 and the payment of the Company Disclosure Letter (which account information may be updated by the Company by written notice to Parent from time to time) Termination Fee or (B) with respect to the Company Termination FeeFee (as applicable), under no circumstances shall a Party be permitted or entitled to receive both a grant of specific performance that results in the account designated by Closing and payment of the Parent in writing to the CompanyTermination Fee or Company Termination Fee (as applicable).