Common use of Purchaser Termination Fee Clause in Contracts

Purchaser Termination Fee. (a) In the event that this Agreement shall be terminated (i) by the Company pursuant to Section 8.1(c)(ii) (at any time at which Purchaser would not have been entitled to terminate this Agreement pursuant to Section 8.1(d)(ii)), or (ii) by the Company or the Purchaser pursuant to Section 8.1(b)(ii) and, in the case of this clause (ii), at such time of termination, (A) all of the conditions set forth in Section 7.1 and Section 7.2 have been and remain satisfied or are capable of being satisfied at such time (with respect to those conditions that by their terms are to be satisfied at the Closing) and (B) the Company confirms to the Purchaser in writing that (x) all of the conditions set forth in Section 7.3 have been and remain satisfied or are capable of being satisfied at such time (with respect to those conditions that by their terms are to be satisfied at the Closing) or it is willing to waive any unsatisfied conditions in Section 7.3 for the purpose of consummating the Closing and (y) it is willing and able to consummate the Closing, then the Purchaser shall pay to the Company a termination fee of $50,000,000 (the “Termination Fee”) in same day funds within two Business Days after such termination of this Agreement. (b) Each of Xxxxxxx, Parent and Purchaser agrees that the agreements contained in Section 9.11(a) are an integral part of the transactions contemplated by this Agreement and constitute liquidated damages and not a penalty. If Purchaser fails to promptly pay to the Company the Termination Fee, Purchaser shall pay the reasonable costs and expenses (including reasonable legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment thereof, together with interest on the amount of any unpaid portion of the Termination Fee at the annual rate of four percent above the publicly announced prime rate of Bank of America, N.A. (or, if lower, the maximum rate permitted by law) from the date such Termination Fee was required to be paid by Purchaser to the date of payment. (c) In the event that this Agreement shall have been terminated and the Company shall have received full payment of the Termination Fee in accordance with this

Purchaser Termination Fee. (a) In the event that this Agreement shall be terminated (i) by the Company pursuant to Section 8.1(c)(ii) (at any time at which Purchaser would not have been entitled to terminate this Agreement pursuant to Section 8.1(d)(ii)), or (ii) by the Company or the Purchaser pursuant to Section 8.1(b)(ii) and, in the case of this clause (ii), at such time of termination, , (A) all of the conditions set forth in Section 7.1 and Section 7.2 have been and remain satisfied or are capable of being satisfied at such time (with respect to those conditions that by their terms are to be satisfied at the Closing) and (B) the Company confirms to the Purchaser in writing that (x) all of the conditions set forth in Section 7.3 have been and remain satisfied or are capable of being satisfied at such time (with respect to those conditions that by their terms are to be satisfied at the Closing) or it is willing to waive any unsatisfied conditions in Section 7.3 for the purpose of consummating the Closing and (y) it is willing and able to consummate the Closing, then the Purchaser shall pay to the Company a termination fee of $50,000,000 (the “Termination Fee”) in same day funds within two Business Days after such termination of this Agreement. (b) Each of Xxxxxxx, Parent Xxxxxx and Purchaser Xxxxxxxxx agrees that the agreements contained in Section 9.11(a) are an integral part of the transactions contemplated by this Agreement and constitute liquidated damages and not a penalty. If Purchaser fails to promptly pay to the Company the Termination Fee, Purchaser shall pay the reasonable costs and expenses (including reasonable legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment thereof, together with interest on the amount of any unpaid portion of the Termination Fee at the annual rate of four percent above the publicly announced prime rate of Bank of America, N.A. (or, if lower, the maximum rate permitted by law) from the date such Termination Fee was required to be paid by Purchaser to the date of payment. (c) In the event that this Agreement shall have been terminated and the Company shall have received full payment of the Termination Fee in accordance with thisthis Section 9.11, together with reimbursement and indemnification of expenses pursuant to Section 6.8, 9.10(c) and Section 9.11(b), the receipt of the Termination Fee, together with such expenses, shall be the sole and exclusive remedy of the Company or any other Person in connection with this Agreement, the transactions contemplated hereby (and the abandonment or termination thereof) or any matter forming the basis for such termination, and neither the Company nor any other Person shall be entitled to bring or maintain any action against the Purchaser, any affiliate of the Purchaser or any Financing Source arising out of or in connection with this Agreement, any of the transactions contemplated hereby (or the abandonment or termination thereof) or any matters forming the basis for such termination. For the avoidance of doubt, in the event Parent and/or Purchaser fail to effect the Closing (including due to the fact that the Debt Financing is not available to Parent) or otherwise breach this Agreement or fail to perform hereunder, then, except for an order of specific performance as and only to the extent expressly permitted by Section 9.12 and reimbursement and indemnification obligations under Section 6.8, Section 9.10(c) and Section 9.11(b), the Company’s sole and exclusive remedy (other than in connection with fraud) against Purchaser, Parent, the Financing Sources or any of their affiliates in respect of this Agreement, any contract or agreement executed in connection herewith (including the Commitment Letters) and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with Article VIII and collect, if due, the Termination Fee from Purchaser (or from Xxxxxxx in accordance with the terms of the Equity Commitment Letter) and any interest payable thereon. (d) Under no circumstances shall the Company be entitled to collect the Termination Fee on more than one occasion and under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance of the obligation to close contemplated by Section 9.12 and any money damages, including all or any portion of the Termination Fee.

Purchaser Termination Fee. (a) In the event that this Agreement shall be is terminated pursuant to (a) (i) by the Company pursuant to Section 8.1(c)(ii9.1(b)(i) (at any a time at which Purchaser would not have been entitled to terminate this Agreement pursuant to Section 8.1(d)(ii)), or (ii) by the Company or the Purchaser pursuant to Section 8.1(b)(ii) and, in the case of this clause (ii), at such time of termination, (A) all of when only the conditions set forth in Section 7.1 and Section 7.2 have been and remain satisfied or are capable of being satisfied at such time (with respect to other than those conditions that by their terms nature are to be satisfied at the Closing, but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section 8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or Section 8.1(b) have not been satisfied, (ii) Section 9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (iii) Section 9.1(b)(iv) and (Bb) (i) the Company confirms conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but for Purchaser’s failure to the agree or to commit to undertake a Purchaser Burdensome Condition or (ii) Purchaser’s failure to perform its obligations in writing that (x) all of the conditions any material respect set forth in Section 7.3 have been and remain satisfied 5.5, then, subject to Section 9.4, Parent will pay, or are capable of being satisfied at such time (with respect to those conditions that by their terms are cause to be satisfied at the Closingpaid, by way of compensation to Seller an amount equal to $6,000,000 by wire transfer (to an account designated by Seller) or it is willing to waive any unsatisfied conditions in Section 7.3 for the purpose of consummating the Closing and (y) it is willing and able to consummate the Closing, then the Purchaser shall pay to the Company a immediately available funds no later than five Business Days following such termination fee of $50,000,000 (the “Purchaser Termination Fee”) ). In no event will Parent be required to pay, or cause to be paid, such amount other than circumstances described in same day funds within two Business Days after this Section 9.3‎, and in no event will Parent be required to pay such termination amount on more than one occasion. The Parties acknowledge that such amount will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Seller for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, which amount would otherwise be impossible to calculate with precision. Except in the case of Actual Fraud or Willful Breach of this Agreement. (b) Each , in any circumstance in which Seller receives such amount pursuant to this Section 9.3, receipt of Xxxxxxxsuch amount will be the sole and exclusive remedy of Seller and its Affiliates and Representatives against Parent, Parent Purchaser, their respective Affiliates and Purchaser agrees that the agreements contained their respective Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in Section 9.11(a) are an integral part of this Agreement, the transactions contemplated by this Agreement hereby, and constitute liquidated damages and not a penalty. If Purchaser fails to promptly pay to the Company the Termination Feeupon receipt of such amount, Purchaser shall pay the reasonable costs and expenses (including reasonable legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment thereof, together with interest on the amount of any unpaid portion none of the Termination Fee at the annual rate foregoing Persons will have any further liability or obligation relating to or arising out of four percent above the publicly announced prime rate of Bank of America, N.A. (or, if lowerthis Agreement, the maximum rate permitted by transactions contemplated hereby, whether in equity or at law) from the date such Termination Fee was required to be paid by Purchaser to the date of payment, in contract, in tort or otherwise. (c) In the event that this Agreement shall have been terminated and the Company shall have received full payment of the Termination Fee in accordance with this

Purchaser Termination Fee. (a) In the event that this Agreement shall be terminated (i) by of the Company pursuant to Section 8.1(c)(ii) (at any time at which Purchaser would not have been entitled to terminate termination of this Agreement pursuant to Section 8.1(d)(ii)8.01(b) or Section 8.01(e) (except, with respect to Section 8.01(e), solely to the extent related to an action of a Governmental Entity that is the subject matter of Section 7.01(a) or (iiSection 7.01(c) by the Company or the Purchaser pursuant to Section 8.1(b)(ii) and, a Governmental Entity of competent jurisdiction in the case of this clause (iiUnited States), at and on the date of such time of termination, (A) termination all of the conditions to this Agreement set forth in Section 7.1 and Section 7.2 have been and remain Article VII are satisfied or are capable of being satisfied at such time (with respect to other than those conditions that by their terms are to be satisfied at the Closing) and , each of which is capable of being satisfied at the Closing), or waived (B) the Company confirms where permissible pursuant to the Purchaser in writing that (x) all applicable Law), other than one or more of the conditions set forth in Section 7.3 have been and remain satisfied 7.01(a), Section 7.01(b), Section 7.01(c) or are capable of being satisfied at such time Section 7.02(c) (except, with respect to those conditions Section 7.01(b) and Section 7.02(c), solely to the extent related to an action of a Governmental Entity that by their terms are to be satisfied at is the Closingsubject matter of Section 7.01(a) or it is willing to waive any unsatisfied conditions Section 7.01(c) or a Governmental Entity of competent jurisdiction in Section 7.3 for the purpose of consummating the Closing and (y) it is willing and able to consummate the ClosingUnited States), then the Purchaser concurrently with such termination of this Agreement (if terminated by Purchaser) or within five (5) Business Days following such termination of this Agreement (if terminated by Seller), Parent shall or shall cause another Parent Group Company to pay to the Company a termination fee Seller, by wire transfer of immediately available funds, an amount equal to eight million dollars ($50,000,000 8,000,000) (the “Purchaser Termination Fee”) to an account designated by Seller in same day funds within two writing at least three (3) Business Days after before such payment; provided, that in the event that any such termination of this Agreement. Agreement occurs after the Original Closing Date following the Purchaser’s delivery of a Delay Notice pursuant to Section 2.01, the Purchaser Termination Fee shall be an amount equal to twelve million dollars (b) $12,000,000). The Purchaser Termination Fee is not a penalty and shall constitute liquidated damages as a reasonable amount that will compensate the Seller in the circumstances upon which the Purchaser Termination Fee is payable for the efforts and resources expended and opportunity foregone with respect to the consummation of the transaction contemplated hereby, which would otherwise be impossible to calculate with precision. Each of Xxxxxxx, Parent and Purchaser agrees Group Company acknowledges that the agreements contained in this Section 9.11(a) 8.03 are an integral part of the transactions contemplated by this Agreement and constitute liquidated damages and that without this Section 8.03 the Seller would not a penaltyhave entered into this Agreement. If Parent or, at the direction of Parent, Purchaser fails to promptly pay any amount due pursuant to this Section 8.03, Parent shall, or shall cause the Purchaser to pay to the Company the Termination FeeSeller all reasonable out-of-pocket fees, Purchaser shall pay the reasonable costs and expenses of enforcement (including reasonable legal attorneys’ fees and expenses) as well as reasonable expenses incurred in connection with any action, including action initiated by the filing of any lawsuit or other legal action, taken to collect payment thereofSeller), together with interest on the amount of any unpaid portion of the Purchaser Termination Fee at the annual prime lending rate of four percent above the publicly announced prime rate of Bank of Americaas published in The Wall Street Journal, N.A. (or, if lower, the maximum rate permitted by law) from in effect on the date such Termination Fee was payment is required to be paid by made. Each of Seller Guarantor and Seller, on behalf of itself and each of their affiliates, hereby acknowledge and agree that Seller’s right to receive payment from Parent or, at the direction of Parent, Purchaser of the Purchaser Termination Fee (under the circumstances in which it is payable) shall be the sole and exclusive remedy of any member of Seller Group or any of their respective former, current or future officers, directors, partners, shareholders, managers, members or affiliates against Parent, Purchaser or any of their respective former, current or future officers, directors, employees, partners, equityholders, controlling persons, stockholders, managers, members, affiliates or assignees (collectively, “Purchaser Related Parties”) for any Loss suffered as a result of the failure of the transactions contemplated hereby, including the Acquisition, to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount (if entitled under this Section 8.03), none of the date Purchaser Related Parties shall have any further liability or obligation relating to or arising out of payment. (c) In the event that this Agreement or the transactions contemplated hereby, including the Acquisition. In no event shall have been terminated and Parent or, at the Company shall have received full payment direction of Parent, Purchaser be required to pay the Purchaser Termination Fee in accordance with thison more than one occasion.