Common use of Termination Fee; Liquidated Damages Clause in Contracts

Termination Fee; Liquidated Damages. If (A) Closing does not occur on or before the Outside Date because Buyer willfully fails to tender performance to effect the Closing by the Outside Date in material breach of its obligations under this Agreement, (B) all of the Conditions Precedent set forth in Sections 3.2(A), 3.2(C), 3.2(D), 3.2(E), 3.2(R), 3.2(S) and 3.2(T) have been satisfied, (C) no Seller is then in material breach of this Agreement, and (D) Oronite and the Local Sellers’ Representative terminate this Agreement pursuant to Section 12.1, then Buyer shall pay the sum of US$11,000,000 (the “Termination Fee”) as liquidated damages within 5 Business Days following demand therefor made by joint written notice from Oronite and the Local Sellers’ Representative to Buyer, as follows, (1) to Oronite, the Oronite Percentage of such sum, and (2) to the Local Sellers’ Trustee, the Local Sellers’ Percentage of such sum (for further distribution to the Local Sellers in accordance with their respective Local Seller Pro Rata Shares); provided, that, for clarity, Buyer shall not be obligated to pay the Termination Fee if the Competition Commission imposes commercially unreasonable conditions or obligations on Buyer, the Company or their Affiliates in connection with the granting of the authorization or clearance required pursuant to the Competition Law. Such payment of the Termination Fee to Oronite and the Local Sellers’ Trustee shall constitute liquidated damages hereunder, which remedy shall be the sole and exclusive remedy available to Sellers for any such willful failure to perform or other uncured material breach of this Agreement against Buyer or its Affiliates. Upon Oronite’s and the Local Sellers’ Trustee’s receipt of the Termination Fee, Buyer and its Affiliates shall be released from any further liability or obligation under this Agreement. Oronite, the Local Sellers’ Representative and Buyer acknowledge and agree that if Oronite and the Local Sellers’ Trustee collect from Buyer the Termination Fee in accordance with this Section 12.2, then (i) Oronite’s and the Local Sellers’ actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) the Termination Fee is a fair and reasonable estimate by the Parties of such actual damages and (iii) such liquidated damages do not constitute a penalty.

Termination Fee; Liquidated Damages. If (Aa) Closing does not occur on In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer by wire transfer of immediately available funds a termination fee equal to three and one half percent (3 1/2%) of the Purchase Price (the “Termination Fee”), in the event Buyer terminates this Agreement pursuant to Section 7.01(g), in which case Company shall pay the Termination Fee within two (2) Business Days after receipt of Buyer’s notification of such termination. (b) The parties hereto agree and acknowledge that if Buyer terminates this Agreement pursuant to Section 7.01(d) or before the Outside Date because Buyer willfully fails to tender performance to effect the Closing Section 7.01(e) by the Outside Date in reason of Company’s or Company Bank’s material breach of the provisions of this Agreement contemplated by Section 7.01(d) or Section 7.01(e) that is not timely cured as provided in such sections, the actual damages sustained by Buyer, including the expenses incurred by Buyer preparatory to entering into this Agreement and in connection with the performance of its obligations under this Agreement, (B) all would be significant and difficult to ascertain, gauged by the circumstances existing at the time this Agreement is executed, and that in lieu of Buyer being required to pursue its damage claims in costly litigation proceedings in such event, the parties agree that Company shall pay a reasonable estimate of the Conditions Precedent set forth in Sections 3.2(Aamount of such damages, which the parties agree is the sum of Five Hundred Thousand Dollars ($500,000) (the “Liquidated Damages Payment”), 3.2(C)as liquidated damages to Buyer, 3.2(D)which payment is not intended as a penalty, 3.2(E), 3.2(R), 3.2(Swithin two (2) Business Days after Buyer’s notification of such termination. (c) Company and 3.2(T) have been satisfied, (C) no Seller is then Buyer each agree that the agreements contained in material breach this Section 7.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 7.02, Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (Di) Oronite the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including reasonable legal fees and expenses) in connection with such suit. (d) Notwithstanding anything to the Local Sellers’ Representative terminate contrary set forth in this Agreement, the parties agree that if this Agreement is terminated by Buyer pursuant to Section 12.17.01(d), then Buyer shall pay the sum of US$11,000,000 (the “Termination Fee”Section 7.01(e) as liquidated damages within 5 Business Days following demand therefor made by joint written notice from Oronite and the Local Sellers’ Representative to Buyer, as follows, (1) to Oronite, the Oronite Percentage of such sumor Section 7.01(g), and (2) if Company pays or causes to the Local Sellers’ Trustee, the Local Sellers’ Percentage of such sum (for further distribution be paid to the Local Sellers in accordance with their respective Local Seller Pro Rata Shares); provided, that, for clarity, Buyer shall not be obligated to pay the Termination Fee if the Competition Commission imposes commercially unreasonable conditions or obligations on Buyer, the Company or their Affiliates in connection with the granting of the authorization or clearance required pursuant to the Competition Law. Such payment of the Termination Fee to Oronite and the Local Sellers’ Trustee shall constitute liquidated damages hereunder, which remedy shall be the sole and exclusive remedy available to Sellers for any such willful failure to perform or other uncured material breach of this Agreement against Buyer or its Affiliates. Upon Oronite’s and the Local Sellers’ Trustee’s receipt of the Termination Fee, to Buyer and its Affiliates shall be released from any further liability or obligation under this Agreement. Oronite, the Local Sellers’ Representative and Buyer acknowledge and agree that if Oronite and the Local Sellers’ Trustee collect from Buyer Bank the Termination Fee in accordance with Section 7.02(a) or, if applicable, the Liquidated Damages Payment in accordance with Section 7.02(b), Company (or any successor in interest of Company) will not have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Section 12.2, then (i) Oronite’s and Agreement or the Local Sellers’ actual damages upon the event of such a termination are difficult to ascertain with any certainty, (ii) the Termination Fee is a fair and reasonable estimate transactions contemplated by the Parties of such actual damages and (iii) such liquidated damages do not constitute a penaltythis Agreement.

Termination Fee; Liquidated Damages. (a) If (A) Closing does not occur on or before the Outside Date because Buyer willfully fails to tender performance to effect consummate the Closing by the Outside Date in material breach Acquisition as a result of its obligations under this Agreement, (B) all of the Conditions Precedent set forth in Sections 3.2(A), 3.2(C), 3.2(D), 3.2(E), 3.2(R), 3.2(S) and 3.2(T) have been satisfied, (C) no Seller is then in material breach of this Agreement, and (D) Oronite and the Local Sellers’ Representative terminate this Agreement pursuant to Section 12.1, then Buyer shall pay to Seller the sum in cash of US$11,000,000 ($100,000, plus all reasonable out of pocket expenses incurred by Seller in connection with the “Termination Fee”) as liquidated negotiation of the Term Sheet heretofore executed by the parties to this Agreement and in furtherance of the transactions contemplated by this Agreement, which Buyer and Seller agree represents a reasonable approximation of the damages within 5 Business Days following demand therefor made likely to be incurred by joint written notice from Oronite and the Local Sellers’ Representative to BuyerSeller in connection with this Agreement, as follows, (1) to Oronite, the Oronite Percentage of such sum, and (2) to the Local Sellers’ Trustee, the Local Sellers’ Percentage of such sum (for further distribution to the Local Sellers in accordance with their respective Local Seller Pro Rata Shares); provided, that, for clarity, provided Buyer shall not be obligated to pay such sum if: (i) Buyer terminates this Agreement under Sections 8.01(a) or 8.01(c), or (ii) Buyer terminates under Section 8.01(e) for the Termination Fee failure of a condition that is the responsibility of Seller that has not been cured by Seller as of the Closing Date, or (iii) Buyer terminates under Section 8.01(d) because the failure to close by August 19, 2005 is due to the inability, for any reason, of Seller and not Buyer to close, or (iv) Seller terminates this Agreement pursuant to Section 8.01(f). Notwithstanding the foregoing, if the Competition Commission imposes commercially unreasonable conditions or obligations on failure to close is due to the inability of Buyer, due to a characteristic of Buyer or one or more Buyer Principals or a matter caused by the Company action or their Affiliates inaction of Buyer or any of the Buyer Principals, to obtain one or more required regulatory approvals, then Buyer shall reimburse Seller for all reasonable out of pocket expenses, not to exceed $50,000.00, incurred by Seller in connection with the granting negotiation of the authorization or clearance required pursuant Term Sheet heretofore executed by the parties to the Competition Law. Such payment this Agreement and in furtherance of the Termination Fee transactions contemplated by this Agreement. (b) If Seller fails to Oronite and consummate the Local Sellers’ Trustee shall constitute liquidated damages hereunder, which remedy shall be the sole and exclusive remedy available to Sellers for any such willful failure to perform or other uncured material Acquisition as a result of its breach of this Agreement against Agreement, Seller shall pay to Buyer or its Affiliates. Upon Oronite’s and the Local Sellers’ Trustee’s receipt sum in cash of $100,000, plus all reasonable out of pocket expenses incurred by Buyer (including amounts paid by Buyer Principals on behalf of Buyer) in connection with the negotiation of the Termination FeeTerm Sheet heretofore executed by the parties to this Agreement and in furtherance of the transactions contemplated by this Agreement, which Buyer and its Affiliates shall Seller agree represents a reasonable approximation of the damages likely to be released from any further liability or obligation under incurred by Buyer in connection with this Agreement. Oronite, the Local Sellers’ Representative and Buyer acknowledge and agree that if Oronite and the Local Sellers’ Trustee collect from Buyer the Termination Fee in accordance with this Section 12.2, then provided Seller shall not be obligated to pay such sum if: (i) Oronite’s and the Local Sellers’ actual damages upon the event of such a termination are difficult to ascertain with any certaintySeller terminates this Agreement under Sections 8.01(a) or 8.01(b), or (ii) Seller terminates under Section 8.01(e) for the Termination Fee failure of a condition that is a fair and reasonable estimate the responsibility of Buyer that has not been cured by them as of the Parties of such actual damages and Closing Date, or (iii) Seller terminates under Section 8.01(d) because the failure to close by August 19, 2005 is due to the inability, for any reason, of Buyer and Buyer Principals and not Seller to close. Seller shall be obligated to pay such liquidated damages do sum if it terminates this Agreement pursuant to Section 8.01 (f). Notwithstanding the foregoing, if the failure to close is due to the inability of Buyer, due to a characteristic of Seller or a matter caused by the action or inaction of Seller, to obtain one or more required regulatory approvals, then Seller shall reimburse Buyer for all reasonable out of pocket expenses, not constitute to exceed $50,000.00, incurred by Buyer in connection with the negotiation of the Term Sheet heretofore executed by the parties to this Agreement and in furtherance of the transactions contemplated by this Agreement. (c) The provisions of this Section 8.04 shall not limit a penaltyparty's right to indemnification contained in Article IX.