Common use of Reverse Termination Fee Clause in Contracts

Reverse Termination Fee. (a) If this Agreement is validly terminated by the Seller pursuant to Section 9.01(f) or Section 9.01(c) with respect to a breach of the covenants set forth in Section 8.08, the Purchaser shall pay, or cause to be paid, within five (5) Business Days after such termination, to Seller a cash fee equal to $37,100,000 (the “Termination Fee”) by wire transfer of immediately available funds to an account or accounts designated in writing by the Seller, it being understood that in no event shall the Purchaser be required to pay or cause to be paid the Termination Fee on more than one occasion. If the Purchaser fails to timely pay the Termination Fee when due pursuant to this Section 9.03(a), and in order to obtain payment, the Seller commences a Proceeding which results in a final, non-appealable judgment against the Purchaser and/or the Guarantors, the Purchaser shall pay, or cause to be paid, to Seller its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee at a rate per annum equal to the prime rate as published in The Wall Street Journal, in effect on the date hereof, compounding quarterly from the date such payment was required to be made through the date such payment was actually received (collectively, the “Seller Recovery Costs”); provided, however, if the Purchaser and/or the Guarantors is the prevailing party in such Proceeding, the Seller shall pay to the Purchaser any reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Purchaser and/or the Guarantors in connection with such Proceeding. Upon payment of the Termination Fee (and any Seller Recovery Costs payable under and in accordance with this Section 9.03(a) and any amounts payable under and in accordance with Section 7.06(c)) when due pursuant to this Section 9.03(a), neither the Purchaser nor any other Purchaser Related Party shall have any further Liability with respect to this Agreement or the transactions contemplated hereby (including the Equity Financing and the Debt Financing) to the Company and its Subsidiaries, the Seller, any other Seller Related Party or any other Person (whether at law, in equity, in contract, in tort or otherwise), and upon such payment none of the Company or any of its Subsidiaries, the Seller, any other Seller Related Party or any other Person shall have any claim or recourse against any Purchaser Related Party as a result of the breach of any representation, warranty, covenant or agreement of the Purchaser contained herein or otherwise arising out of or in connection with the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Without limiting the foregoing, in no event shall any Seller Related Party seek, or permit to be sought, on behalf of any of the Seller Related Parties, any monetary damages from any Purchaser Related Party in connection with this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing), other than (without duplication) from the Purchaser (i) to the extent provided in this Section 9.03(a), or (ii) pursuant to a claim for monetary damages by Seller (brought in the appropriate court with jurisdiction in accordance with Sections 13.16 and 13.17) for a Purchaser Willful Breach against Purchaser (a “Purchaser Willful Breach Claim”) (provided that (A) the Seller Related Parties, in the aggregate, shall not be permitted or entitled to recover damages in excess of an amount equal to two times (2x) the Termination Fee in the aggregate (the “Purchaser Damages Cap”), and (B) for the avoidance of doubt, none of the Seller Related Parties shall be permitted or entitled to recover damages that have not been awarded to the Seller Related Parties in respect of a Purchaser Willful Breach by the appropriate court (with jurisdiction in accordance with Sections 13.16 and 13.17), as finally determined by a judgment of such court (which is no longer subject to further appeal or review)). Nothing in this Section 9.03(a) shall in any way expand or be deemed to expand the circumstances in which the Purchaser or any other Purchaser Related Party may be liable under this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Notwithstanding anything herein to the contrary (but subject to Section 13.19), while Seller may pursue both (x) a grant of a decree or order of specific performance or other equitable relief, as and only to the extent expressly permitted by Section 13.19, to enforce the Purchaser’s obligations under this Agreement to cause the Equity Financing to be funded pursuant to the terms and conditions of the Equity Commitment Letter and to effect the Closing in accordance with Section 2.01 and (y) a Purchaser Willful Breach Claim (only to the extent expressly permitted by this Section 9.03), under no circumstances shall Seller be permitted or entitled to receive both (i) such grant of a decree or order of specific performance or other equitable relief to cause the Equity Financing to be funded and to effect the Closing and (ii) damages in respect of a Purchaser Willful Breach Claim. Notwithstanding anything to the contrary herein, in no event shall (i) the Seller Related Parties be entitled to receive both the Termination Fee and monetary damages in respect of a Purchaser Willful Breach Claim, or (ii) any Seller Related Party be entitled to recover any monetary damages for a Purchaser Willful Breach Claim prior to the termination of this Agreement in accordance with Section 9.01; provided, nothing in this sentence shall preclude Seller from pursuing a Purchaser Willful Breach Claim prior to the termination of this Agreement so long as any award of monetary damages in respect thereof is conditioned upon the prior or concurrent termination of this Agreement in accordance with Section 9.01.

Reverse Termination Fee. (a) If In the event that this Agreement is validly terminated by the (A) Seller pursuant to Section 9.01(f8.1(e) or Section 9.01(c8.1(f), (B) with respect Buyer or Seller pursuant to a breach Section 8.1(b), or (C) Buyer or Seller pursuant to Section 8.1(c) (to the extent such Law or Order arises under the Antitrust Laws) and, in the case of clauses (B) or (C), on the date of such termination all of the covenants conditions to closing set forth in Section 8.087.1(b) and Section 7.2 shall have been satisfied or waived, other than (1) in the Purchaser case of Section 7.1(b), to the extent such Law or Order arises under the Antitrust Laws and (2) those conditions that by their nature are to be satisfied at the Closing (which in the case of clause (2) would be satisfied if the Closing Date were the date of such termination) (each of the foregoing a “Reverse Termination Fee Trigger”), then Buyer shall pay, promptly pay or cause to be paid, within five paid (5but in no event later than three (3) Business Days after the date of such termination, to Seller a ) an aggregate cash fee amount equal to $37,100,000 40,000,000 (the “Reverse Termination Fee”) to Seller by wire transfer of immediately available funds in U.S. dollars; provided that Seller shall not be entitled to receive the Reverse Termination Fee pursuant to the foregoing clauses (B) or (C) in the event Seller at the time of such termination has not complied with its obligations under Section 5.6 in all material respects. Notwithstanding the foregoing, in the event that this Agreement is validly terminated by Seller pursuant to Section 8.1(f) due to Buyer’s failure to consummate the Closing and the failure of the Sponsor to the fund the Equity Financing was the proximate cause of Buyer’s failure to consummate the Closing, the Reverse Termination Fee shall be an aggregate cash amount equal to $45,000,000. Each of Buyer acknowledges that the agreement to pay the Reverse Termination Fee, as applicable, as and when payable pursuant to this Section 8.3 is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate the party receiving such amount in the circumstances in which such amount is due and 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 which amount would otherwise be impossible to calculate with precision. Accordingly, if Buyer fails to promptly pay any amount due pursuant to this Section 8.3, Buyer shall also pay any documented out-of-pocket costs, fees and expenses incurred by any Seller and its Affiliates (including reasonable legal fees and expenses) up to an account or accounts designated amount equal to $1,500,000 (the “Enforcement Costs”) in writing by connection with a legal action to enforce this Agreement that results in a judgment for such amount against Buyer. Any amount not paid when due pursuant to this Section 8.3 shall accrue interest at the Sellerprime lending rate prevailing during such period as published in The Wall Street Journal and shall be calculated on a daily basis from the date such amounts were required to be paid until (but excluding) the date of actual payment, it being understood and on the basis of a 360-day year. The Parties agree and understand that in no event shall the Purchaser Buyer be required to pay or cause to be paid the Reverse Termination Fee on more than one occasion. If occasion and under no circumstances shall the Purchaser fails Seller be permitted or entitled to timely pay receive both a grant of specific performance that results in a Closing and any portion of the Reverse Termination Fee when or other monetary damages. Notwithstanding anything to the contrary in this Agreement, except in the case of a Willful Breach or Fraud by Buyer (subject to the last two sentences of this Section 8.3), if Seller receives the Reverse Termination Fee from Buyer pursuant to this Section 8.3, such payment, together with any interest, costs, fees or expenses due pursuant to this Section 9.03(a8.3 and any amounts payable by Buyer pursuant to Section 5.20(f), shall be the sole and in order exclusive remedy of Seller against Buyer and its Affiliates or any Debt Financing Source and none of the Buyer or any of its Affiliates or any Debt Financing Source shall have any further liability or obligation relating to obtain payment, or arising out of this Agreement or any Ancillary Agreement. In the event that this Agreement is terminated by Seller commences pursuant to a Proceeding which results in a final, non-appealable judgment against the Purchaser and/or the Guarantors, the Purchaser shall pay, or cause to be paid, to Seller its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Proceeding, together with interest on the Reverse Termination Fee at Trigger except in the case of a rate per annum equal Willful Breach or Fraud by Buyer (subject to the prime rate as published in The Wall Street Journallast two sentences of this Section 8.3), in effect on the date hereof, compounding quarterly from the date such payment was required Seller’s right to be made through the date such payment was actually received (collectively, the “Seller Recovery Costs”); provided, however, if the Purchaser and/or the Guarantors is the prevailing party in such Proceeding, the Seller shall pay to the Purchaser any reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Purchaser and/or the Guarantors in connection with such Proceeding. Upon receive payment of the Reverse Termination Fee (and any Seller Recovery Costs Enforcement Costs, if applicable) in the circumstances in which it is payable under and in accordance with this Section 9.03(a) and any amounts payable under and in accordance with Section 7.06(c)) when due pursuant to this Section 9.03(a8.3, in any case, shall be the sole and exclusive remedy for any and all losses suffered or incurred by Seller or its Affiliates in connection with this Agreement (and the actual or purported termination hereof) and the Ancillary Agreements, the Debt Commitment Letter, the Debt Financing, the failure of the Closing to occur or any other transactions contemplated hereby or thereby (or the abandonment thereof), or any matter forming the basis for such termination. In the event that this Agreement is terminated by Seller pursuant to a Reverse Termination Fee Trigger, except in the case of a Willful Breach or Fraud by Buyer (subject to the last two sentences of this Section 8.3), neither the Purchaser Buyer nor any other Purchaser Related Party its Affiliates shall have any further Liability with respect liability to this Agreement Seller or the transactions contemplated hereby its Affiliates (including the Equity Financing Acquired Group Companies), and the Debt Financing) to the Company Seller and its SubsidiariesAffiliates (including the Acquired Group Companies) shall not have (and hereby agree not to initiate, the Sellerpursue, or otherwise participate in (whether directly or indirectly)) any other Seller Related Party rights or any other Person actions (whether at law, in Law or equity, in contract, in tort or otherwise)) against Buyer or its Affiliates, and upon such payment none in each case, with respect to this Agreement, the Ancillary Agreements, the Debt Commitment Letter, the Debt Financing, the failure of the Company or any of its Subsidiaries, the Seller, any other Seller Related Party Closing to occur or any other Person shall have any claim or recourse against any Purchaser Related Party as a result of the breach of any representation, warranty, covenant or agreement of the Purchaser contained herein or otherwise arising out of or in connection with the transactions contemplated hereby hereunder or thereunder (including or the Equity Financing abandonment thereof) or any matter forming the basis for such termination, other than (i) the obligation of Buyer to pay, or cause to be paid, the Reverse Termination Fee (and any Enforcement Costs, if applicable) in the Debt Financingevent that the Reverse Termination Fee is payable pursuant to this Section 8.3 and (ii) any amounts payable by Buyer pursuant to Section 5.20(f). Without limiting Notwithstanding anything in this Agreement to the foregoingcontrary, in no event shall any Seller Related Party seek, or permit to be sought, on behalf of any of the Seller Related Parties, any monetary damages from any Purchaser Related Party in connection with this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing), other than (without duplication) from the Purchaser (i) to the extent provided in this Section 9.03(a), or (ii) pursuant to a claim for monetary damages by Seller (brought in the appropriate court with jurisdiction in accordance with Sections 13.16 and 13.17) for a Purchaser Willful Breach against Purchaser (a “Purchaser Willful Breach Claim”) (provided that (A) the Seller Related Parties, in the aggregate, shall not be permitted or entitled to recover damages in excess of an amount equal to two times (2x) the Termination Fee in the aggregate (the “Purchaser Damages Cap”), and (B) for the avoidance of doubt, none of the Seller Related Parties shall be permitted or entitled to recover damages that have not been awarded to the Seller Related Parties in respect of a Purchaser Willful Breach by the appropriate court (with jurisdiction in accordance with Sections 13.16 and 13.17), as finally determined by a judgment of such court (which is no longer subject to further appeal or review)). Nothing in this Section 9.03(a) shall in any way expand or be deemed to expand the circumstances in which the Purchaser or any other Purchaser Related Party may be liable under this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Notwithstanding anything herein to the contrary (but subject to Section 13.19), while Seller may pursue both (x) a grant of a decree or order of specific performance or other equitable relief, as and only to the extent expressly permitted by Section 13.19, to enforce the Purchaser’s obligations under this Agreement to cause the Equity Financing to be funded pursuant to the terms and conditions of the Equity Commitment Letter and to effect the Closing in accordance with Section 2.01 and (y) a Purchaser Willful Breach Claim (only to the extent expressly permitted by this Section 9.03), under no circumstances shall Seller be permitted or entitled to receive both (i) such grant of a decree or order of specific performance or other equitable relief to cause the Equity Financing to be funded and to effect the Closing and (ii) damages in respect of a Purchaser Willful Breach Claim. Notwithstanding anything to the contrary herein, in no event shall (i) the Seller Related Parties be entitled to receive both the Reverse Termination Fee and any Enforcement Costs, on the one hand, and an award of monetary damages in respect of a Purchaser Willful Breach Claimdamages, or (ii) any Seller Related Party be entitled to recover any monetary damages for a Purchaser Willful Breach Claim on the other hand, and prior to the termination of commencing any Legal Proceeding to enforce its rights under this Agreement in accordance connection with Section 9.01; provideda termination pursuant to a Reverse Termination Fee Trigger, nothing Seller shall be required to elect, and thereafter shall have its recovery limited for all purposes hereunder, to seek either the Reverse Termination Fee and any Enforcement Costs, on the one hand, or an award of monetary damages, on the other hand (and never either or both). Notwithstanding anything in this sentence Agreement to the contrary, in no event shall preclude Seller from pursuing a Purchaser Buyer be deemed to be in Willful Breach Claim prior to the termination extent the unavailability of the Debt Financing or any Alternative Debt Financing to be funded at the Closing shall have resulted in Buyer’s breach of this Agreement so long as any award of monetary damages Buyer is not otherwise in respect thereof is conditioned upon the prior or concurrent termination breach of this Agreement in accordance with Section 9.01Agreement.

Reverse Termination Fee. (a) If this Agreement is validly terminated by Parent and the Seller Sellers pursuant to Section 9.01(f9.1(b)(2) (in the event of a breach or failure to perform by Purchaser) or Section 9.01(c9.1(c) with respect (failure to a breach of the covenants set forth in Section 8.08close), the then Purchaser shall pay, or cause pay to be paid, within five (5) Business Days after such termination, to Seller a cash fee equal to $37,100,000 Parent an amount (the “Reverse Termination Fee”) by wire transfer equal to $223,600,000 within two (2) Business Days of immediately available funds to an account or accounts designated in writing by the Seller, date of such termination (it being understood that in no event shall the Purchaser be required to pay or cause to be paid the Reverse Termination Fee on more than one occasion. If the Purchaser fails to timely pay the Termination Fee when due pursuant to this Section 9.03(aonce), and in order to obtain payment, the Seller commences a Proceeding which results in a final, non-appealable judgment against the Purchaser and/or the Guarantors, the Purchaser shall pay, or cause to be paid, to Seller its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee at a rate per annum equal to the prime rate as published in The Wall Street Journal, in effect on the date hereof, compounding quarterly from the date such payment was required to be made through the date such payment was actually received (collectively, the “Seller Recovery Costs”); provided, however, if the Purchaser and/or the Guarantors is the prevailing party in such Proceeding, the Seller shall pay to the Purchaser any reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Purchaser and/or the Guarantors in connection with such Proceeding. Upon payment of the Termination Fee (and any Seller Recovery Costs payable under and in accordance with this Section 9.03(a) and any amounts payable under and in accordance with Section 7.06(c)) when due pursuant to this Section 9.03(a), neither the Purchaser nor any other Purchaser Related Party shall have any further Liability with respect to this Agreement or the transactions contemplated hereby (including the Equity Financing and the Debt Financing) to the Company and its Subsidiaries, the Seller, any other Seller Related Party or any other Person (whether at law, in equity, in contract, in tort or otherwise), and upon such payment none of the Company or any of its Subsidiaries, the Seller, any other Seller Related Party or any other Person shall have any claim or recourse against any Purchaser Related Party as a result of the breach of any representation, warranty, covenant or agreement of the Purchaser contained herein or otherwise arising out of or in connection with the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Without limiting the foregoing, in no event shall any Seller Related Party seek, or permit to be sought, on behalf of any of the Seller Related Parties, any monetary damages from any Purchaser Related Party in connection with this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing), other than (without duplication) from the Purchaser (i) to the extent provided in this Section 9.03(a), or (ii) pursuant to a claim for monetary damages by Seller (brought in the appropriate court with jurisdiction in accordance with Sections 13.16 and 13.17) for a Purchaser Willful Breach against Purchaser (a “Purchaser Willful Breach Claim”) (provided that (A) the Seller Related Parties, in the aggregate, shall not be permitted or entitled to recover damages in excess of an amount equal to two times (2x) the Termination Fee in the aggregate (the “Purchaser Damages Cap”), and (B) for the avoidance of doubt, none of the Seller Related Parties shall be permitted or entitled to recover damages that have not been awarded to the Seller Related Parties in respect of a Purchaser Willful Breach by the appropriate court (with jurisdiction in accordance with Sections 13.16 and 13.17), as finally determined by a judgment of such court (which is no longer subject to further appeal or review)). Nothing in this Section 9.03(a) shall in any way expand or be deemed to expand the circumstances in which the Purchaser or any other Purchaser Related Party may be liable under this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Notwithstanding anything herein to the contrary (but subject to Section 13.19), while Seller may pursue both (x) a grant of a decree or order of specific performance or other equitable relief, as and only to the extent expressly permitted by Section 13.19, to enforce the Purchaser’s obligations under this Agreement to cause the Equity Financing to be funded pursuant to the terms and conditions of the Equity Commitment Letter and to effect the Closing in accordance with Section 2.01 and (y) a Purchaser Willful Breach Claim (only to the extent expressly permitted by this Section 9.03), under no circumstances shall Seller be permitted or entitled to receive both (i) such grant of a decree or order of specific performance or other equitable relief to cause the Equity Financing to be funded and to effect the Closing and (ii) damages in respect of a Purchaser Willful Breach Claim. Notwithstanding anything to the contrary hereinin this Agreement, in no event shall but subject to the second sentence of Section 9.4(d) and Purchaser’s payment obligations under clause (y) of Section 9.3 (the “Regulatory Fee Payment Obligations”), (i) Parent’s receipt of the Seller Reverse Termination Fee from Purchaser pursuant to this Section 9.4(a) (including its rights to enforce the Guarantees with respect thereto), any reimbursement and indemnification obligations of Purchaser pursuant to Section 5.19(b) (such reimbursement and indemnification obligations pursuant to Section 5.19(b), the “Purchaser Financing Cooperation Payment Obligations”) and Parent’s right to seek specific performance of this Agreement by Purchaser prior to termination of this Agreement, as provided for and subject to the limitations set forth in Section 11.11, shall be the sole and exclusive remedies of Parent and the Sellers against the Purchaser Related Parties be entitled for any Loss relating to receive both or arising out of this Agreement or the Termination Fee and monetary damages in respect of a Purchaser Willful Breach ClaimGuarantees, or (ii) the transactions contemplated hereby or thereby, including any Seller Related Party be entitled to recover any monetary damages for a Purchaser Willful Breach Claim prior to breach of this Agreement by Purchaser, the termination of this Agreement or the failure to consummate the transactions contemplated hereby, in accordance with each case, in any circumstance in which Parent is entitled to receive the Reverse Termination Fee pursuant to this Section 9.01; provided9.4(a), nothing in this sentence and, upon payment of such amounts, none of the Purchaser Related Parties shall preclude Seller from pursuing a Purchaser Willful Breach Claim prior have any Liability or obligation relating to the termination or arising out of this Agreement so long as or the Guarantees, or the transactions contemplated hereby or thereby, or any award claims or actions under applicable Law arising out of monetary damages in respect thereof is conditioned upon the prior any such breach, termination or concurrent termination of this Agreement in accordance with Section 9.01failure.

Reverse Termination Fee. In the event that this Agreement is terminated by the Company pursuant to Section 6.1(c)(iii) or by RG pursuant to Section 6.1(b)(ii) at a time when (a) If the Company would have the right to terminate this Agreement is validly terminated by the Seller pursuant to Section 9.01(f6.1(c)(iii) or and (b) the Company had provided the notice contemplated by Section 9.01(c) with respect 6.1(c)(iii)(D), then RG shall pay the Company the Reverse Termination Fee less the amount of any expenses previously reimbursed to a breach of the covenants set forth in Company pursuant to Section 8.08, the Purchaser shall pay, or cause 6.3(b). Any payment required to be paid, within five made pursuant to this Section 6.4 shall be made to the Company promptly following termination of this Agreement (5and in any event not later than two (2) Business Days after such termination, to Seller a cash fee equal to $37,100,000 (the “Termination Fee”) and such payment shall be made by wire transfer of immediately available funds to an account or accounts to be designated in writing by the Seller, it being understood Company. The parties hereto acknowledge that the damages resulting from termination of this Agreement under circumstances in no event shall which the Purchaser be required to pay or cause to be paid the Reverse Termination Fee on more than one occasion. If is payable are uncertain and incapable of accurate calculation and that the Purchaser fails to timely pay the Termination Fee when due amounts payable pursuant to this Section 9.03(a)6.4 are reasonable forecasts of the actual damages which may be incurred, and in order to obtain payment, the Seller commences a Proceeding which results in a final, non-appealable judgment against event that the Purchaser and/or the Guarantors, the Purchaser Company shall pay, or cause to be paid, to Seller its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee at a rate per annum equal to the prime rate as published in The Wall Street Journal, in effect on the date hereof, compounding quarterly from the date such receive full payment was required to be made through the date such payment was actually received (collectively, the “Seller Recovery Costs”); provided, however, if the Purchaser and/or the Guarantors is the prevailing party in such Proceeding, the Seller shall pay to the Purchaser any reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Purchaser and/or the Guarantors in connection with such Proceeding. Upon payment of the Termination Fee (and any Seller Recovery Costs payable under and in accordance with this Section 9.03(a) and any amounts payable under and in accordance with Section 7.06(c)) when due pursuant to this Section 9.03(a), neither the Purchaser nor any other Purchaser Related Party shall have any further Liability with respect to this Agreement or the transactions contemplated hereby (including the Equity Financing and the Debt Financing) to the Company and its Subsidiaries6.4, the Sellerreceipt of the Reverse Termination Fee shall be deemed to be liquidated damages, and not a penalty, for any and all losses or damages suffered or incurred by the Company, any other Seller Related Party of its Subsidiaries or Affiliates or any other Person in connection with this Agreement (whether at lawand the termination hereof), in equity, in contract, in tort the Transactions (and the abandonment thereof) or otherwise)any matter forming the basis for such termination, and upon such payment of such amount none of the Company RG or any of its Subsidiaries, the Seller, any other Seller Related Party Affiliates or any other Person Representatives shall have any claim further liability or recourse against any Purchaser Related Party as a result of the breach of any representation, warranty, covenant obligation relating to or agreement of the Purchaser contained herein or otherwise arising out of or in connection with the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Without limiting the foregoing, in no event shall any Seller Related Party seek, or permit to be sought, on behalf of any of the Seller Related Parties, any monetary damages from any Purchaser Related Party in connection with this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing), other than (without duplication) from the Purchaser (i) to the extent provided in this Section 9.03(a), or (ii) pursuant to a claim for monetary damages by Seller (brought in the appropriate court with jurisdiction in accordance with Sections 13.16 and 13.17) for a Purchaser Willful Breach against Purchaser (a “Purchaser Willful Breach Claim”) (provided that (A) the Seller Related Parties, in the aggregate, shall not be permitted or entitled to recover damages in excess of an amount equal to two times (2x) the Termination Fee in the aggregate (the “Purchaser Damages Cap”), and (B) for the avoidance of doubt, none of the Seller Related Parties shall be permitted or entitled to recover damages that have not been awarded to the Seller Related Parties in respect of a Purchaser Willful Breach by the appropriate court (with jurisdiction in accordance with Sections 13.16 and 13.17), as finally determined by a judgment of such court (which is no longer subject to further appeal or review))Transactions. Nothing in this Section 9.03(a) shall in any way expand or be deemed to expand the circumstances in which the Purchaser or any other Purchaser Related Party may be liable under this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Notwithstanding anything herein to the contrary (but subject to Section 13.19), while Seller may pursue both (x) a grant of a decree or order of specific performance or other equitable relief, as and only to the extent expressly permitted by Section 13.19, to enforce the Purchaser’s obligations under this Agreement to cause the Equity Financing to be funded pursuant to the terms and conditions of the Equity Commitment Letter and to effect the Closing in accordance with Section 2.01 and (y) a Purchaser Willful Breach Claim (only to the extent expressly permitted by this Section 9.03), under Under no circumstances shall Seller RG be permitted or entitled obligated to receive both pay more than one (i1) such grant of a decree or order of specific performance or other equitable relief to cause the Equity Financing to be funded and to effect the Closing and (ii) damages in respect of a Purchaser Willful Breach Claim. Notwithstanding anything to the contrary herein, in no event shall (i) the Seller Related Parties be entitled to receive both the Reverse Termination Fee and monetary damages in respect of a Purchaser Willful Breach Claim, or (ii) any Seller Related Party be entitled to recover any monetary damages for a Purchaser Willful Breach Claim prior to the termination of this Agreement in accordance with Section 9.01; provided, nothing in this sentence shall preclude Seller from pursuing a Purchaser Willful Breach Claim prior to the termination of this Agreement so long as any award of monetary damages in respect thereof is conditioned upon the prior or concurrent termination of this Agreement in accordance with Section 9.01Fee.

Reverse Termination Fee. (a) If Notwithstanding anything to the contrary herein and without limiting the foregoing, if this Agreement is validly terminated by (including following the Seller Company or Sellers having sought relief pursuant to Section 9.01(f10.4 and such relief not being granted) by (i) Sellers’ Representative pursuant to Section 2.2.4; or (ii) either the Purchaser or the Sellers’ Representative pursuant to Section 9.01(c2.2.1 (but only if all conditions to Closing in Section 7.1 (other than Section 7.1.4 (as it relates to any approval required under the HSR Act or other applicable Antitrust Law) with respect and Section 7.1.6) have been satisfied or waived (other than those conditions which, by their nature, are to a breach be satisfied at the Closing, including delivery of the covenants set forth in Section 8.08Closing deliverable contemplated by Article VIII, but subject to such conditions then being capable of being satisfied if the Closing were to take place on such date) , then the Purchaser shall paypay to the Company, or cause to be paid, within five (5) Business Days after such termination, to Seller a cash fee equal to $37,100,000 (the “Termination Fee”) by wire transfer of immediately available funds to an account or accounts as designated in writing by the SellerSellers’ Representative, it being understood a cash amount equal to $35,000,000 (the “Reverse Termination Fee”) within three (3) Business Days of the effective date of such termination. The parties acknowledge and agree that the agreements contained in no event shall this Section 2.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither the Purchaser be required to pay or cause to be paid nor the Termination Fee on more than one occasion. If Sellers and the Company would have entered into this Agreement; accordingly, if the Purchaser fails to timely pay the Reverse Termination Fee when due pursuant to this Section 9.03(a)and, and in order to obtain such payment, the Seller Company commences a Proceeding suit which results in a final, non-appealable judgment against the Purchaser and/or for the Guarantorsamount of the Reverse Termination Fee, the Purchaser shall pay, or cause pay to be paid, to Seller its the Company the reasonable out-of-pocket costs and expenses (including reasonable attorneys’ feesfees and expenses of enforcement) in connection with such Proceedingsuit, together with interest on the Termination Fee amounts owed at a rate per annum equal to three (3) percentage points over the prime lending rate prevailing at such time, as published in The Wall Street Journal, in effect on the date hereof, compounding quarterly from the date such payment was amounts were required to be made through paid hereunder until the date such payment was actually received by the Company (collectivelythe “Reverse Termination Fee Expenses”). Notwithstanding anything to the contrary contained herein, if this Agreement is terminated and such termination gives rise to the obligation of the Purchaser to pay the Reverse Termination Fee, the “Seller Recovery Costs”); provided, however, if payment of the Purchaser and/or the Guarantors is the prevailing party in such Proceeding, the Seller shall pay to the Purchaser Reverse Termination Fee and any reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred Reverse Termination Fee Expenses by the Purchaser and/or shall constitute liquidated damages, not a penalty and shall be the Guarantors in connection with such Proceeding. Upon payment Company’s and the Sellers’ sole and exclusive remedy for any breach, loss or damage arising out of this Agreement, and the Termination Fee (Company and any Seller Recovery Costs payable under and in accordance with this Section 9.03(a) and any amounts payable under and in accordance with Section 7.06(c)) when due pursuant to this Section 9.03(a), neither the Sellers shall have no rights or claims against the Purchaser nor any other Purchaser Related Party shall have any further Liability with respect to arising out of, or related to, this Agreement or the transactions contemplated hereby (including the Equity Financing and the Debt Financing) to the Company and its Subsidiarieshereby, the Seller, any other Seller Related Party or any other Person (whether at law, in law or equity, in contract, in tort or otherwise), and upon such payment none of the Company or any of its Subsidiaries, the Seller, any other Seller Related Party or any other Person shall have any claim or recourse against any Purchaser Related Party as a result of the breach of any representation, warranty, covenant or agreement of the Purchaser contained herein or otherwise arising out of or in connection with the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Without limiting the foregoing, in no event shall any Seller Related Party seek, or permit to be sought, on behalf of any of the Seller Related Parties, any monetary damages from any Purchaser Related Party in connection with this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing), other than (without duplication) from the Purchaser (i) to the extent provided in this Section 9.03(a), or (ii) pursuant to a claim for monetary damages by Seller (brought in the appropriate court with jurisdiction in accordance with Sections 13.16 and 13.17) for a Purchaser Willful Breach against Purchaser (a “Purchaser Willful Breach Claim”) (provided that (A) the Seller Related Parties, in the aggregate, shall not be permitted or entitled to recover damages in excess of an amount equal to two times (2x) the Termination Fee in the aggregate (the “Purchaser Damages Cap”), and (B) for the avoidance of doubt, none of the Seller Related Parties shall be permitted or entitled to recover damages that have not been awarded to the Seller Related Parties in respect of a Purchaser Willful Breach by the appropriate court (with jurisdiction in accordance with Sections 13.16 and 13.17), as finally determined by a judgment of such court (which is no longer subject to further appeal or review)). Nothing in this Section 9.03(a) shall in any way expand or be deemed to expand the circumstances in which the Purchaser or any other Purchaser Related Party may be liable under this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Notwithstanding anything herein to the contrary (but subject to Section 13.19), while Seller may pursue both (x) a grant of a decree or order of specific performance or other equitable relief, as and only to the extent expressly permitted by Section 13.19, to enforce the Purchaser’s obligations under this Agreement to cause the Equity Financing to be funded pursuant to the terms and conditions of the Equity Commitment Letter and to effect the Closing in accordance with Section 2.01 and (y) a Purchaser Willful Breach Claim (only to the extent expressly permitted by this Section 9.03), under no circumstances shall Seller be permitted or entitled to receive both (i) such grant of a decree or order of specific performance or other equitable relief to cause the Equity Financing to be funded and to effect the Closing and (ii) damages in respect of a Purchaser Willful Breach Claim. Notwithstanding anything to the contrary herein, in no event shall (i) the Seller Related Parties be entitled to receive both the Termination Fee and monetary damages in respect of a Purchaser Willful Breach Claim, or (ii) any Seller Related Party be entitled to recover any monetary damages for a Purchaser Willful Breach Claim prior to the termination of this Agreement in accordance with Section 9.01; provided, that, nothing in this sentence Section 2.5 shall preclude Seller relieve Purchaser from pursuing a Purchaser Willful Breach Claim prior to the termination of this Agreement so long as any award of monetary damages in respect thereof is conditioned upon the prior or concurrent termination of this Agreement in accordance with Section 9.01Liability for Fraud.

Reverse Termination Fee. (a) If In the event that this Agreement is validly terminated (i) by the Seller Buyers or Sellers pursuant to Section 9.01(f6.1(b)(i), in a circumstance in which Sellers would then have been entitled to terminate this Agreement pursuant to Section 6.1(c) or Section 9.01(c6.1(e) with respect or (ii) by Sellers pursuant to a breach of Section 6.1(c) or Section 6.1(e), then, upon Sellers’ written request, BPS Buyer or the covenants set forth in Section 8.08, the Purchaser guarantor under each Limited Guarantee shall pay, promptly pay or cause to be paid, within five (5) Business Days after such termination, paid to BPS or Seller a cash fee Parent an amount equal to $37,100,000 200,000,000 (the “Reverse Termination Fee”) ), by wire transfer of immediately available funds to an account or accounts designated in writing by the SellerSellers as promptly as reasonably practicable (and, it being understood in any event, within five (5) Business Days) following any termination described in the foregoing clauses (i) and (ii). The Parties agree that in no event shall the Purchaser be required to pay or cause to be paid the Reverse Termination Fee be payable on more than one occasion. If the Purchaser fails Buyers fail to timely pay the Termination Fee when any amount due by it pursuant to this Section 9.03(a6.3(a), and in order to obtain payment, the Seller commences a Proceeding which results in a final, non-appealable judgment against the Purchaser and/or the Guarantors, the Purchaser Buyers shall pay, or cause to be paid, to Seller its reasonable out-of-pocket pay all costs and expenses (including reasonable attorneys’ fees) incurred by the Sellers and their Affiliates in connection with such Proceedingenforcing this Section 6.3(a), together with interest on such amount at the Termination Fee at a annual rate per annum equal to the prime rate as published in The Wall Street Journal, Journal in effect on the date hereof, compounding quarterly from the date such payment was required to be made through the date such payment was actually received (collectivelyreceived, the “Seller Recovery Costs”); provided, however, if the Purchaser and/or the Guarantors or such lesser rate as is the prevailing party in such Proceeding, maximum permitted by applicable Law; provided that the Seller shall pay to the Purchaser any reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred maximum amount payable by the Purchaser and/or the Guarantors in connection with such Proceeding. Upon payment of the Termination Fee (and any Seller Recovery Costs payable under and in accordance with this Section 9.03(a) and any amounts payable under and in accordance with Section 7.06(c)) when due Buyers pursuant to this Section 9.03(a), neither the Purchaser nor any other Purchaser Related Party shall have any further Liability with respect to this Agreement or the transactions contemplated hereby (including the Equity Financing and the Debt Financing) to the Company and its Subsidiaries, the Seller, any other Seller Related Party or any other Person (whether at law, in equity, in contract, in tort or otherwise), and upon such payment none of the Company or any of its Subsidiaries, the Seller, any other Seller Related Party or any other Person shall have any claim or recourse against any Purchaser Related Party as a result of the breach of any representation, warranty, covenant or agreement of the Purchaser contained herein or otherwise arising out of or in connection with the transactions contemplated hereby (including the Equity Financing and the Debt Financing). Without limiting the foregoing, in no event shall any Seller Related Party seek, or permit to be sought, on behalf of any of the Seller Related Parties, any monetary damages from any Purchaser Related Party in connection with this Agreement or any of the transactions contemplated hereby (including the Equity Financing and the Debt Financing), other than (without duplication) from the Purchaser (i) to the extent provided in this Section 9.03(a), or (ii) pursuant to a claim for monetary damages by Seller (brought in the appropriate court with jurisdiction in accordance with Sections 13.16 and 13.17) for a Purchaser Willful Breach against Purchaser (a “Purchaser Willful Breach Claim”) (provided that (A) the Seller Related Parties, in the aggregate, sentence shall not be permitted or entitled to recover damages in excess of an amount equal to two times (2x) the Termination Fee in the aggregate exceed $5,000,000 (the “Purchaser Damages Enforcement Cap”). Solely for purposes of establishing the basis for the amount thereof, and (B) for the avoidance of doubt, none of the Seller Related Parties shall be permitted or entitled to recover damages that have not been awarded to the Seller Related Parties in respect of a Purchaser Willful Breach by the appropriate court (with jurisdiction in accordance with Sections 13.16 and 13.17), as finally determined by a judgment of such court (which is no longer subject to further appeal or review)). Nothing in this Section 9.03(a) shall without in any way expand increasing the amount of the Reverse Termination Fee or expanding the circumstances in which it is to be deemed to expand paid, each Party acknowledges that, in the circumstances in which the Purchaser or any other Purchaser Related Party may be liable under Reverse Termination Fee is payable, the Reverse Termination Fee constitutes liquidated damages, and not a penalty, in a reasonable amount that will compensate Sellers and the Company for the efforts and resources expended and the opportunities foregone while negotiating this Agreement or any and in reliance on this Agreement and on the expectation of the transactions contemplated hereby (including consummation of the Equity Financing Transactions, which amount would otherwise be impossible to calculate with precision, and the Debt Financing). Notwithstanding anything herein to the contrary (but subject to Section 13.19), while Seller may pursue both (x) a grant of a decree or order of specific performance or other equitable relief, as and only to the extent expressly permitted by Section 13.19, to enforce the Purchaser’s obligations under this Agreement to cause the Equity Financing to be funded pursuant to the terms and conditions payment of the Equity Commitment Letter Reverse Termination Fee in such circumstances is supported by due and to effect sufficient consideration. Buyers and Sellers acknowledge that the Closing agreements contained in accordance with Section 2.01 and (y) a Purchaser Willful Breach Claim (only to the extent expressly permitted by this Section 9.03), under no circumstances shall Seller be permitted or entitled to receive both (i) such grant 6.3 and the limitations on remedies set forth in Section 8.4 are integral parts of a decree or order of specific performance or other equitable relief to cause the Equity Financing to be funded and to effect Transactions without which the Closing and (ii) damages in respect of a Purchaser Willful Breach Claim. Notwithstanding anything to the contrary herein, in no event shall (i) the Seller Related Parties be entitled to receive both the Termination Fee and monetary damages in respect of a Purchaser Willful Breach Claim, or (ii) any Seller Related Party be entitled to recover any monetary damages for a Purchaser Willful Breach Claim prior to the termination of would not have entered into this Agreement in accordance with Section 9.01; provided, nothing in this sentence shall preclude Seller from pursuing a Purchaser Willful Breach Claim prior to the termination of this Agreement so long as any award of monetary damages in respect thereof is conditioned upon the prior or concurrent termination of this Agreement in accordance with Section 9.01Agreement.