Common use of Purchaser Termination Fee Clause in Contracts

Purchaser Termination Fee. If this Agreement is validly terminated by the Seller pursuant to Section 8.1(a)(vii), then the Purchaser shall pay to the Seller by wire transfer of immediately available funds an amount equal to $20,000,000 (the “Purchaser Termination Fee”), such payment to be made within 5 Business Days after written notice of such termination. It is the intent of the Seller and the Purchaser, and the Seller and the Purchaser hereby acknowledge and agree, that notwithstanding anything to the contrary in this Agreement, upon the termination of this Agreement pursuant to Section 8.1(a)(vii), the Seller’s receipt of the Purchaser Termination Fee shall be the sole and exclusive right and remedy of the Seller, the Company and their Affiliates, and the sole and exclusive obligation of the Purchaser and its Affiliates, with respect to all matters arising under or relating to this Agreement, and that upon payment of the Purchaser Termination Fee, the Purchaser shall not have any further liability or obligation relating to or arising out of this Agreement, and all rights and claims, whether at Law or in equity, in contract, tort or otherwise, of the Seller, the Company and its Affiliates shall be deemed waived, against the Purchaser or any of its Affiliates, lenders or investors for any and all Losses suffered in connection with this Agreement or the transactions contemplated hereby (other than with respect to obligations arising under the Confidentiality Agreement, and any expense reimbursement and indemnity obligations of the Purchaser contained in Sections 6.3(a) and 6.16 and any interest and expenses payable pursuant to the following sentence of this Section 8.2). In the event that the Purchaser fails to timely pay the Purchaser Termination Fee when due and payable pursuant to this Section 8.2, and, in order to obtain such payment the Seller commences an Action, and Purchaser ultimately pays such Purchaser Termination Fee, the Purchaser shall pay the Seller its reasonable costs and expenses (including reasonable attorney’s fees) incurred in connection with such Action along with the Purchaser Termination Fee, together with interest on the Purchaser Termination Fee and such costs or expenses at the “prime rate” as published in The Wall Street Journal, Eastern Edition on such date, from the date on which the Purchaser Termination Fee was due and payable hereunder (or such costs and expenses were expended by Seller) until the date on which such payment is received by the Seller.

Purchaser Termination Fee. If In the event that this Agreement is validly terminated by the Seller pursuant to Section 8.1(a)(vii8.01(d) or Section 8.01(g), and in connection therewith a Financing Failure Event has occurred, then the Purchaser shall pay (or cause to be paid) to Seller a termination fee of $20,000,000 in the Seller by wire transfer of aggregate in cash in immediately available funds an amount equal to $20,000,000 (the “Purchaser Termination Fee”) as promptly as reasonably practicable (and, in any event, within five (5) Business Days following such termination), such payment it being understood that in no event shall Purchaser be required to pay (or cause to be made paid) the Purchaser Termination Fee on more than one occasion. In the event that this Agreement is terminated pursuant to Section 8.01(d) or Section 8.01(g), and in connection therewith a Financing Failure Event has not occurred, then Seller, at its sole option, may seek any remedies available to it, including specific performance pursuant to Section 10.09; provided, that if Seller so desires in its sole discretion, it may at any time following such termination elect in a writing delivered to Purchaser liquidated damages in lieu of specific performance or other monetary damages available to Seller, and in such event Purchaser shall pay (or cause to be paid) to Seller a liquidated damages fee of $20,000,000 in the aggregate in cash in immediately available funds (the “Purchaser Damages Fee”) as promptly as reasonably practicable (and, in any event, within 5 five (5) Business Days after written following notice of such termination. It is election), it being understood that in no event shall Purchaser be required to pay (or cause to be paid) (i) the intent of Purchaser Damages Fee on more than one occasion or (ii) both the Seller and the Purchaser, and the Seller Purchaser Termination Fee and the Purchaser hereby acknowledge and agree, that notwithstanding Damages Fee. Notwithstanding anything to the contrary in this Agreement, upon in the termination of event this Agreement is terminated pursuant to Section 8.1(a)(vii)8.01(d) or Section 8.01(g) and the Purchaser Termination Fee, or at Seller’s election the Purchaser Damages Fee, is paid to Seller, or as directed by Seller to another Person, the Seller’s receipt payment of the Purchaser Termination Fee or the Purchaser Damages Fee, as applicable, pursuant to this Section 8.03 shall be deemed to be the sole and exclusive right and remedy of the Seller, Parent and the Company and their Affiliates, and the sole and exclusive obligation of against the Purchaser and its AffiliatesAffiliates for any Losses, Liabilities or other damages suffered in connection with respect to all matters arising under this Agreement (including as a result of any breach of any representation, warranty, covenant, agreement or relating to other provision in this Agreement), and that (ii) upon payment of the Purchaser Termination Fee, or at Seller’s election the Purchaser Damages Fee, none of Purchaser, its Affiliates shall not have any further liability or obligation relating to or arising out of this Agreement, Agreement or the transactions contemplated hereby and all rights and claims, whether at Law or in equity, in contract, tort or otherwise, (iii) upon payment of the Purchaser Termination Fee, or at Seller’s election the Purchaser Damages Fee, none of Seller, Parent nor the Company and shall have any further recourse against Purchaser or its Affiliates shall be deemed waived, against the Purchaser or any of its Affiliates, lenders or investors for any and all Losses suffered in connection with this Agreement or the transactions contemplated hereby (other than with respect to obligations arising under including the Confidentiality Agreement, and any expense reimbursement and indemnity obligations of the Purchaser contained in Sections 6.3(aDebt Financing) and 6.16 and Seller, Parent or the Company shall cause any interest and expenses payable pursuant to litigation, proceeding or similar Proceedings pending against Purchaser, its Affiliates or the following sentence of this Section 8.2). In the event that the Purchaser fails to timely pay the Purchaser Termination Fee when due and payable pursuant to this Section 8.2, and, in order to obtain such payment the Seller commences an Action, and Purchaser ultimately pays such Purchaser Termination Fee, the Purchaser shall pay the Seller its reasonable costs and expenses (including reasonable attorney’s fees) incurred Debt Financing Sources in connection with such Action along this Agreement and/or any of the transaction contemplated hereby to be dismissed with prejudice promptly, but in any event within five (5) Business Days thereafter. The parties hereto agree that the Purchaser Termination Fee, together with interest on and the Purchaser Termination Damages Fee if elected by Seller, is a liquidated damage, and such costs not a penalty. The parties acknowledge and agree that the agreements contained in this Section 8.03 and Section 8.04 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties would not enter this Agreement. Seller shall be entitled to seek both a grant of specific performance if permitted pursuant to Section 10.09, and monetary damages or expenses at the “prime rate” as published in The Wall Street Journal, Eastern Edition on such date, from the date on which payment of the Purchaser Damages Fee under this Section 8.03, but under no circumstances shall Seller be permitted or entitled to receive both a grant of specific performance and an award of money damages, including all or any portion of the Purchaser Damages Fee or Purchaser Termination Fee was due and payable hereunder (or such costs and expenses were expended by Seller) until the date on which such payment is received by the SellerFee.

Purchaser Termination Fee. If In the event that this Agreement is validly terminated by the Seller pursuant to (a) (i) Section 8.1(a)(vii)9.1(b)(i) at a time when only the conditions (other than those conditions that by their nature are to be satisfied at the Closing, then 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 (b) (i) the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but for Purchaser’s failure to agree or to commit to undertake a Purchaser shall pay Burdensome Condition or (ii) Purchaser’s failure to the perform its obligations in any material respect set forth in Section 5.5, then, subject to Section 9.4, Parent will pay, or cause to be paid, by way of compensation to Seller by wire transfer of immediately available funds an amount equal to $20,000,000 6,000,000 by wire transfer (to an account designated by Seller) of immediately available funds no later than five Business Days following such termination (the “Purchaser Termination Fee”). In no event will Parent be required to pay, or cause to be paid, such payment to be made within 5 Business Days after written notice of such termination. It is the intent of the Seller and the Purchaseramount other than circumstances described in this Section 9.3‎, and in no event will Parent be required to pay such 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 Seller efforts and the Purchaser hereby acknowledge resources expended and agree, that notwithstanding anything to the contrary opportunities foregone while negotiating this Agreement and in reliance on this Agreement, upon which amount would otherwise be impossible to calculate with precision. Except in the termination case of Actual Fraud or Willful Breach of this Agreement Agreement, in any circumstance in which Seller receives such amount pursuant to this Section 8.1(a)(vii)9.3, the Seller’s receipt of the Purchaser Termination Fee shall such amount will be the sole and exclusive right and remedy of the SellerSeller and its Affiliates and Representatives against Parent, the Company Purchaser, their respective Affiliates and their Affiliatesrespective Representatives for any loss suffered as a result of any breach of any representation, and the sole and exclusive obligation of the Purchaser and its Affiliateswarranty, with respect to all matters arising under covenant or relating to agreement in this Agreement, the transactions contemplated hereby, and that upon payment receipt of such amount, none of the Purchaser Termination Fee, the Purchaser shall not foregoing Persons will have any further liability or obligation relating to or arising out of this Agreement, and all rights and claimsthe transactions contemplated hereby, whether in equity or at Law or in equitylaw, in contract, in tort or otherwise, of the Seller, the Company and its Affiliates shall be deemed waived, against the Purchaser or any of its Affiliates, lenders or investors for any and all Losses suffered in connection with this Agreement or the transactions contemplated hereby (other than with respect to obligations arising under the Confidentiality Agreement, and any expense reimbursement and indemnity obligations of the Purchaser contained in Sections 6.3(a) and 6.16 and any interest and expenses payable pursuant to the following sentence of this Section 8.2). In the event that the Purchaser fails to timely pay the Purchaser Termination Fee when due and payable pursuant to this Section 8.2, and, in order to obtain such payment the Seller commences an Action, and Purchaser ultimately pays such Purchaser Termination Fee, the Purchaser shall pay the Seller its reasonable costs and expenses (including reasonable attorney’s fees) incurred in connection with such Action along with the Purchaser Termination Fee, together with interest on the Purchaser Termination Fee and such costs or expenses at the “prime rate” as published in The Wall Street Journal, Eastern Edition on such date, from the date on which the Purchaser Termination Fee was due and payable hereunder (or such costs and expenses were expended by Seller) until the date on which such payment is received by the Seller.

Purchaser Termination Fee. If In the event that: (i) this Agreement is validly terminated by the Seller pursuant to (A) Section 8.1(a)(vii‎9.1(b)(i) at a time when only the conditions (other than those conditions that by their 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, (B) 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 (C) Section ‎9.1(b)(iv); and (ii) the conditions in Section ‎8.1(a) and Section ‎8.1(b) failed to be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section ‎5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the termination of this Agreement), then the Purchaser shall pay then, subject to the Section ‎9.3(c), Parent will pay, or cause to be paid, by way of compensation to Seller by wire transfer of immediately available funds an amount equal to $20,000,000 100,000,000 (the “Regulatory Termination Fee”); provided, however, that, if this Agreement has been terminated in the circumstances set forth in the preceding clause (i) and the conditions in Section ‎8.1(a) and Section ‎8.1(b) would have been satisfied but for (x) Purchaser’s failure to agree or to commit to undertake a Purchaser Burdensome Condition or (y) Purchaser’s failure to perform in any material respect its obligations under in Section ‎‎5.5 (written notice of which failure to perform was provided by Seller to Purchaser at least 30 days prior to the termination of this Agreement), then, subject to Section ‎9.3(c), Parent will pay, or shall cause to be paid, by way of compensation to Seller an amount equal to $200,000,000 (the “Purchaser Termination Fee”). If the Regulatory Termination Fee or the Purchaser Termination Fee becomes due and payable in accordance with this Section ‎9.3(b), then such payment fee shall be paid in each case by wire transfer (to be made within 5 an account designated by Seller) of immediately available funds (I) prior to or concurrently with such termination in the event of a termination by Purchaser or (II) no later than five Business Days after written notice following such termination in the event of such terminationa termination by Seller. It is In no event will Parent be required to pay the intent Purchaser Termination Fee or Regulatory Termination Fee other than in the circumstances described in this Section ‎9.3(b) and in no event will Parent be required to pay both the Purchaser Termination Fee and the Regulatory Termination Fee. In the event that both the Purchaser Termination Fee and the Regulatory Termination Fee are payable pursuant to this Section ‎9.3(b), then Seller shall only be entitled to receive, and Purchaser shall only be required to pay, the Purchaser Termination Fee. In addition, Parent shall not be required to pay the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, on more than one occasion. The Parties acknowledge that each of the Seller Purchaser Termination Fee and the PurchaserRegulatory Termination Fee will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Seller for the efforts and the Seller resources expended and the Purchaser hereby acknowledge opportunities foregone while negotiating this Agreement and agree, that notwithstanding anything to the contrary in reliance on this Agreement, upon which amount would otherwise be impossible to calculate with precision. Except in the termination case of Willful Breach or Actual Fraud, in any circumstance in which Seller receives the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, pursuant to this Section ‎9.3(b), receipt of such fee will be the sole and exclusive remedy of Seller and its Affiliates and their respective Representatives against Purchaser, Parent and their respective Affiliates and Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement pursuant to Section 8.1(a)(vii)or in connection with the transactions contemplated hereby, the Seller’s and upon receipt of the Purchaser Termination Fee shall be or the sole and exclusive right and remedy of the Seller, the Company and their Affiliates, and the sole and exclusive obligation of the Purchaser and its Affiliates, with respect to all matters arising under or relating to this Agreement, and that upon payment of the Purchaser Regulatory Termination Fee, none of the Purchaser shall not foregoing Persons will have any further liability or obligation relating to or arising out of this Agreement, and all rights and claims, whether at Law or in equity, in contract, tort or otherwise, of the Seller, the Company and its Affiliates shall be deemed waived, against the Purchaser or any of its Affiliates, lenders or investors for any and all Losses suffered in connection with this Agreement or the transactions contemplated hereby (other than with respect to obligations arising under the Confidentiality Agreementhereby, and any expense reimbursement and indemnity obligations of the Purchaser contained whether in Sections 6.3(a) and 6.16 and any interest and expenses payable pursuant to the following sentence of this Section 8.2). In the event that the Purchaser fails to timely pay the Purchaser Termination Fee when due and payable pursuant to this Section 8.2, andequity or at law, in order to obtain such payment the Seller commences an Actioncontract, and Purchaser ultimately pays such Purchaser Termination Fee, the Purchaser shall pay the Seller its reasonable costs and expenses (including reasonable attorney’s fees) incurred in connection with such Action along with the Purchaser Termination Fee, together with interest on the Purchaser Termination Fee and such costs tort or expenses at the “prime rate” as published in The Wall Street Journal, Eastern Edition on such date, from the date on which the Purchaser Termination Fee was due and payable hereunder (or such costs and expenses were expended by Seller) until the date on which such payment is received by the Sellerotherwise.

Purchaser Termination Fee. If (a) In the event that (i) Seller terminates this Agreement is validly terminated pursuant to, and in compliance with, Section 9.1(c) or Section 9.1(g) or (ii) Purchaser terminates this Agreement pursuant to, and in compliance with, Section 9.1(d), or Seller terminates this Agreement pursuant to, and in compliance with, Section 9.1(e), in either case of this clause (ii), at a time when Seller would have been permitted to terminate this Agreement under Section 9.1(g) and assuming all applicable notices were delivered by the Seller pursuant to Section 8.1(a)(vii(a “Qualified Termination”), then the Purchaser shall pay to the Seller by wire transfer Seller, or cause to be paid to Seller, a termination fee of $20,000,000 in cash in immediately available funds an amount equal to $20,000,000 (the “Purchaser Termination Fee”)) as promptly as reasonably practicable (and in any event, such payment to be made within 5 five (5) Business Days after written following the receipt by the Purchaser of Seller’s notice of such termination. It is the intent of the Seller and the Purchaser), and the Seller and it being understood that in no event shall the Purchaser hereby acknowledge and agree, that notwithstanding be required to pay the Purchaser Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement, upon Agreement but subject to the termination proviso at the end of this Agreement pursuant to Section 8.1(a)(vii9.3(a), in the Seller’s event a Qualified Termination occurs, receipt of the Purchaser Termination Fee pursuant to this Section 9.3 shall be the sole and exclusive right and remedy of the Seller, the Company and their its Affiliates, and the sole and exclusive obligation of against the Purchaser and its Affiliates, with respect the Debt Financing Sources and any other actual or prospective financing sources and any arranger, agent or other representative of the foregoing, or any of the respective direct or indirect, former, current or future, Affiliates, general or limited partners, stockholders, managers, members, directors, officers, employees, agents, representatives, advisors or assignees of the foregoing (collectively, the “Purchaser Group Members”) for any Loss suffered as a result of any breach of this Agreement or the Debt Commitment Letter or the or the failure of the transactions contemplated by this Agreement or the Debt Commitment Letter to all matters arising under or relating to this Agreementbe consummated, and that upon payment of the Purchaser Termination Fee, the no Purchaser Group Member shall not have any further liability Liability to Seller or obligation any of its Affiliates, or to any of the representatives of any of the foregoing, relating to or arising out of this Agreement, and all rights and claims, whether at Law Agreement or in equity, in contract, tort or otherwise, of the SellerDebt Commitment Letter, the Company and its Affiliates shall be deemed waivedtransactions contemplated hereby or the Debt Commitment Letter (including, against for the Purchaser or avoidance of doubt, the Financing), any breach of its Affiliates, lenders or investors for any and all Losses suffered in connection with this Agreement or the Debt Commitment Letter or any failure of such transactions contemplated hereby by this Agreement or the Debt Commitment Letter to be consummated, in each case, whether based on contract (other than with respect to obligations arising including under the Confidentiality AgreementDebt Commitment Letter or any alternatives thereof contemplated hereby, this Agreement or otherwise), tort or strict liability, by the enforcement of any assessment, by any Action, by virtue of any applicable Law or otherwise and whether by or through attempted piercing of the corporate veil, by or through any Action by or on behalf of a party hereto or another Person or otherwise; provided that nothing in this Agreement shall limit the right of Seller to bring or maintain any Action for injunction, specific performance or other equitable relief to the extent, and any expense reimbursement and indemnity obligations of the Purchaser contained in Sections 6.3(a) and 6.16 and any interest and expenses payable pursuant solely to the following sentence of this extent, provided in Section 8.212.13(b). In the event that the Purchaser fails to timely pay the Purchaser Termination Fee when due and payable pursuant to this Section 8.2, and, in order to obtain such payment the Seller commences an Action, and Purchaser ultimately pays such Purchaser Termination Fee, the Purchaser shall pay the Seller its reasonable costs and expenses (including reasonable attorney’s fees) incurred in connection with such Action along with the Purchaser Termination Fee, together with interest on the Purchaser Termination Fee and such costs or expenses at the “prime rate” as published in The Wall Street Journal, Eastern Edition on such date, from the date on which the Purchaser Termination Fee was due and payable hereunder (or such costs and expenses were expended by Seller) until the date on which such payment is received by the Seller.

Purchaser Termination Fee. If (a) In the event this Agreement is validly terminated by (i) the Seller pursuant to Section 8.1(a)(vii9.01(e), then (ii) the Seller or the Purchaser pursuant to Section 9.01(a) at a time when (x) the Seller could have terminated this Agreement under Section 9.01(e) or (y) the Purchaser or the Seller could have terminated this Agreement under Section 9.01(f), (iii) the Seller or the Purchaser pursuant to Section 9.01(f), or (iv) the Seller or the Purchaser pursuant to Section 9.01(b) as a result of the issuance of any Governmental Order, pursuant to the Australian Foreign Acquisitions and Takeovers Xxx 0000 (Cth), restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement that has become final and non-appealable, the Purchaser shall pay to the Seller by wire transfer of immediately available funds an amount equal to $20,000,000 168,000,000 (the “Purchaser Termination Fee”), such payment to be made without any deductions for withholding or other similar Taxes, within 5 seven (7) Business Days after written notice of such termination. It is the intent of the Seller and the Purchaser, and the Seller and the Purchaser hereby acknowledge and agree, that notwithstanding anything to the contrary in this Agreement, upon the termination of this Agreement pursuant to Section 8.1(a)(vii), the Seller’s receipt of If the Purchaser Termination Fee shall be is due pursuant to this Section 9.03, and, in order to obtain the sole and exclusive right and remedy of the Sellerpayment thereof, the Company and their Affiliates, and the sole and exclusive obligation of Seller commences an Action which results in a final judgment not subject to reasonable further appeal (or any settlement payment) against the Purchaser and its Affiliates, with respect to all matters arising under or relating to this Agreement, and that upon for payment of the Purchaser Termination Fee, the Purchaser shall not have any further liability or obligation relating pay to or arising out of this Agreement, and all rights and claims, whether at Law or in equity, in contract, tort or otherwise, of the Seller, the Company and its Affiliates shall be deemed waived, against the Purchaser or any of its Affiliates, lenders or investors for any and all Losses suffered in connection with this Agreement or the transactions contemplated hereby (other than with respect to obligations arising under the Confidentiality Agreement, and any expense reimbursement and indemnity obligations of the Purchaser contained in Sections 6.3(a) and 6.16 and any interest and expenses payable pursuant to the following sentence of this Section 8.2). In the event that the Purchaser fails to timely pay the Purchaser Termination Fee when due and payable pursuant to this Section 8.2, and, in order to obtain such payment the Seller commences an Action, and Purchaser ultimately pays such Purchaser Termination Fee, the Purchaser shall pay the Seller its reasonable out of pocket costs and expenses (including reasonable attorney’s attorneys’ fees) incurred in connection with such Action along with the Purchaser Termination Feeand enforcing its rights hereunder, together with interest on the Purchaser Termination Fee and such costs or expenses amounts at the “prime rate” lending rate as published in The Wall Street Journal, Eastern Edition Journal on such date, from the date on which the Purchaser Termination Fee was due and payable hereunder (or such costs and expenses were expended by Seller) until the date on which such payment is received was required to be made. The Purchaser acknowledges and agrees that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the SellerSeller would not enter into this Agreement.

Purchaser Termination Fee. If Sellers agree and acknowledge that Purchaser’s negotiation and execution of this Agreement have required a substantial investment of management time and significant commitment of financial and other resources of Purchaser, and that the negotiation and execution of this Agreement have provided significant value to Sellers. Therefore, if the Bankruptcy Court fails to approve this Agreement because another offer for the purchase of the Business has been received and is validly terminated approved by the Seller pursuant to Section 8.1(a)(vii)Bankruptcy Court, then the then, in such event, and if thereafter any Purchaser shall Termination Event (as hereinafter defined) occurs, Sellers will pay to Purchaser a termination fee, which will include reimbursement of Purchaser’s costs and expenses in connection with the Seller by wire transfer negotiation of immediately available funds and activities incident to this Agreement, in an amount equal to $20,000,000 50,000 (the “Purchaser Termination Fee”), such payment to . The Purchaser Termination Fee will be made within 5 Business Days after written notice of such termination. It is paid upon the intent closing of the Seller and sale of the Business (or of the Purchased Assets thereof) to a third party. A Purchaser Termination Event means the consummation of any Alternative Transaction including a sale of all or a substantial portion of the Purchased Assets by a Competing Bid from a party other than the Purchaser, and or the Seller and confirmation of any Chapter 11 Plan, within 180 days of the execution of this Agreement. Sellers shall pay the Purchaser hereby acknowledge and agreeTermination Fee on the earlier of (a) the date of the consummation of an Alternative Transaction or (b) on the effective date of the confirmation by the Bankruptcy Court of any Chapter 11 Plan, that notwithstanding anything such date not to exceed fifteen (15) days from the contrary in this Agreement, upon the termination date of this Agreement pursuant such confirmation. Sellers’ obligation to Section 8.1(a)(vii), the Seller’s receipt of pay the Purchaser Termination Fee shall constitute and be the sole treated as a superpriority administrative expense of Sellers under Sections 503(b) and exclusive right and remedy 507(b) of the SellerBankruptcy Code and paid in cash immediately when due. The parties agree that such sum is a reasonable estimate of Purchaser’s costs, the Company and their Affiliatesexpenses, and the sole loss, and exclusive obligation of the is fair consideration to induce Purchaser and its Affiliates, with respect to all matters arising under or relating to enter into this Agreement, and that upon payment of the Purchaser Termination Fee, the Purchaser shall not have any further liability or obligation relating to or arising out of this Agreement, and all rights and claims, whether at Law or in equity, in contract, tort or otherwise, of the Seller, the Company and its Affiliates shall be deemed waived, against the Purchaser or any of its Affiliates, lenders or investors for any and all Losses suffered in connection with this Agreement or the transactions contemplated hereby (other than with respect to obligations arising under the Confidentiality Agreement, and any expense reimbursement and indemnity obligations of the Purchaser contained in Sections 6.3(a) and 6.16 and any interest and expenses payable pursuant to the following sentence of this Section 8.2). In the event that the Purchaser fails to timely pay the Purchaser Termination Fee when due and payable pursuant to this Section 8.2, and, in order to obtain such payment the Seller commences an Action, and Purchaser ultimately pays such Purchaser Termination Fee, the Purchaser shall pay the Seller its reasonable costs and expenses (including reasonable attorney’s fees) incurred in connection with such Action along with the Purchaser Termination Fee, together with interest on the Purchaser Termination Fee and such costs or expenses at the “prime rate” as published in The Wall Street Journal, Eastern Edition on such date, from the date on which the Purchaser Termination Fee was due and payable hereunder (or such costs and expenses were expended by Seller) until the date on which such payment is received by the Seller.

Purchaser Termination Fee. If Notwithstanding Section 8.3 above, in the event that there is a valid and effective termination of this Agreement is validly terminated by the Seller Purchaser pursuant to Section 8.1(a)(vii), 8.1(e) then the Purchaser Company shall pay to Purchaser a termination fee equal to One Million One Hundred Fifty Thousand U.S. Dollars ($1,150,000) plus the Seller Expenses actually incurred by or on behalf of Purchaser or any of its Affiliates in connection with the authorization, preparation, negotiation, execution or performance of this Agreement or the Ancillary Documents or the Merger or the other transactions contemplated hereby or thereby, including any related SEC filings, the Registration Statement, the Redemption and any PIPE Investment, but excluding any and all deferred expenses (including fees or commissions payable to the underwriters and any legal fees) of the IPO upon consummation of a Business Combination and any Extension Expenses (such aggregate amount, the “Purchaser Termination Fee”). The Purchaser Termination Fee shall be paid by wire transfer of immediately available funds to an amount equal to $20,000,000 account designated in writing by Purchaser within five (the “Purchaser Termination Fee”), such payment to be made within 5 5) Business Days after written notice Purchaser delivers to the Company the amount of such terminationExpenses, along with reasonable documentation in connection therewith. It is the intent of the Seller and the Purchaser, and the Seller and the Purchaser hereby acknowledge and agree, that notwithstanding Notwithstanding anything to the contrary in this Agreement, upon the Parties expressly acknowledge and agree that, with respect to any termination of this Agreement pursuant to Section 8.1(a)(vii)in circumstances where the Purchaser Termination Fee is payable, the Seller’s receipt payment of the Purchaser Termination Fee shall, in light of the difficulty of accurately determining actual damages, constitute liquidated damages with respect to any claim for damages or any other claim which Purchaser would otherwise be entitled to assert against the Company or any of its Affiliates or any of their respective assets, or against any of their respective directors, officers, employees or stockholders with respect to this Agreement and the transactions contemplated hereby and shall be constitute the sole and exclusive right and remedy of available to Purchaser, provided, that the Seller, foregoing shall not limit (x) the Company and their Affiliates, and the sole and exclusive obligation of the Purchaser and its Affiliates, with respect to all matters arising under or from Liability for any Fraud Claim relating to this Agreement, and that upon payment events occurring prior to termination of the Purchaser Termination Fee, the Purchaser shall not have any further liability or obligation relating to or arising out of this Agreement, and all rights and claims, whether at Law or in equity, in contract, tort or otherwise, of the Seller, the Company and its Affiliates shall be deemed waived, against the Purchaser or any of its Affiliates, lenders or investors for any and all Losses suffered in connection with this Agreement or (y) the transactions contemplated hereby (rights of Purchaser to seek specific performance or other than with respect to obligations arising injunctive relief in lieu of terminating this Agreement. For the avoidance of doubt, Fraud Claim shall not include decisions and conduct protected under the Confidentiality Agreement, and any expense reimbursement and indemnity obligations of the Purchaser contained in Sections 6.3(a) and 6.16 and any interest and expenses payable pursuant to the following sentence of this Section 8.2). In the event that the Purchaser fails to timely pay the Purchaser Termination Fee when due and payable pursuant to this Section 8.2, and, in order to obtain such payment the Seller commences an Action, and Purchaser ultimately pays such Purchaser Termination Fee, the Purchaser shall pay the Seller its reasonable costs and expenses (including reasonable attorney’s fees) incurred in connection with such Action along with the Purchaser Termination Fee, together with interest on the Purchaser Termination Fee and such costs or expenses at the “prime rate” as published in The Wall Street Journal, Eastern Edition on such date, from the date on which the Purchaser Termination Fee was due and payable hereunder (or such costs and expenses were expended by Seller) until the date on which such payment is received by the Sellerbusiness judgment rule.