Common use of Termination Consideration Clause in Contracts

Termination Consideration. (a) In the event that (i) the Closing does not occur, (ii) the Purchase Agreement is terminated, (iii) in connection with such termination Buyer shall be entitled to a return of the Deposit under the terms of the Purchase Agreement and (iv) there shall be a Positive EBITDA Amount for the Transition Services Term so that a decrease to the Purchase Price would have been in effect under Section 3.1 if the Closing had occurred, then, in addition to the reimbursement of the Buyer Operating Expenses pursuant to Section 3.4, the Seller Parties shall pay or cause to be paid to Buyer a termination payment under this Agreement in an amount equal to the Positive EBITDA Amount that would have been applied as a decrease to the Purchase Price under Section 3.1 (the “Seller Termination Payment”). (b) In the event that (i) the Closing does not occur, (ii) the Purchase Agreement is terminated, (iii) in connection with such termination Buyer shall be entitled to a return of the Deposit under the terms of the Purchase Agreement and (iv) there shall be Negative EBITDA Amount for the Transition Services Term so that an increase to the Purchase Price would have been in effect under Section 3.3 if the Closing had occurred, then Buyer shall pay or cause to be paid to Seller a termination payment under this Agreement in an amount equal to the Negative EBITDA Amount that would have been applied as an increase to the Purchase Price under Section 3.3 (the “Buyer Termination Payment”). (c) Notwithstanding the foregoing provisions of this Section 3.6 or anything to the contrary set forth in Section 6.1, if (i) the Closing does not occur, (ii) the Purchase Agreement is terminated, (iii) in connection with such termination Buyer shall be entitled to a return of the Deposit under the terms of the Purchase Agreement and (iv) there has been an event of loss with respect to the Project such that there shall be proceeds under the Existing Project Insurance constituting all, or substantially all, of the replacement value of the Project (a “Total Loss Event”), then for purposes of calculating any termination payment payable to Buyer or Seller under this Section 3.6, (x) 50% of the amount of such insurance proceeds paid under the Existing Project Insurance with respect to such Total Loss Event shall be payable by the Seller Parties to Buyer as an additional termination payment hereunder (a “Total Loss Payment”), and (y) the amount of such insurance proceeds payable under the Existing Project Insurance and any amounts relating to the cost of repair or replacement cost of the Project shall not be included in the calculation of EBITDA under Section 3.1. (d) Notwithstanding the foregoing provisions of this Section 3.6 or anything to the contrary set forth in Section 6.1, if (i) there shall have been an event of loss (other than a Total Loss Event) with respect to the Project (a “Material Insured Event”), (ii) Buyer shall elect not to proceed with a Closing under the Purchase Agreement solely on the basis of such Material Insured Event in accordance with the terms of the Purchase Agreement, (iii) the Purchase Agreement is terminated as a result thereof and (iv) in connection with such termination Buyer shall be entitled to a return of the Deposit under the terms of the Purchase Agreement, then for purposes of calculating any termination payment payable to Buyer or Seller under this Section 3.6, (i) the amount of insurance proceeds payable under the Existing Project Insurance with respect to such Material Insured Event shall not be included for purposes of Section 3.1(a)(y) of the EBITDA calculation and (ii) the costs of all repairs and other expenses incurred with respect to such Material Insured Event shall not be included for purposes of Section 3.1(b)(y) of the EBITDA calculation. (e) For purposes of the calculation of any termination payment under this Section 3.6, each Party shall provide to the other Party such additional details pertaining to the calculation of EBITDA or a Total Loss Payment that is in its possession as is reasonably requested by the other Party. Within fourteen (14) days following the termination of the Purchase Agreement, Seller shall make an initial calculation of the Seller Termination Payment, Buyer Termination Payment and/or Total Loss Payment and give written notice of such initial calculations to Buyer. Each of the Seller Termination Payment, Buyer Termination Payment and/or Total Loss Payment, as applicable, shall be payable within thirty (30) days of the receipt by the Party required to make such payment of the invoice setting forth such Seller Termination Payment, Buyer Termination Payment and/or Total Loss Payment or, if later, within ten (10) days of receipt of the insurance proceeds included within such payment from the Party entitled to the same as set forth hereunder.