Common use of Breakup Fee Clause in Contracts

Breakup Fee. (a) If this Agreement is terminated by Buyer other than pursuant to Section 10.1, then in such event Buyer shall pay to Sellers the Breakup Fee. The Breakup Fee shall be irrevocable and non-refundable, due and payable on August 13, 2025. If the Buyer fails to pay the Breakup Fee on August 13, 2025, the Breakup Fee shall bear interest at a rate of 10% per annum. In the event the Buyer fails to pay the Breakup Fee when due, the Buyer shall be responsible for all of Sellers’ collection costs and expenses, including without limitation, all legal fees of the Sellers. (b) Notwithstanding anything to the contrary in this Agreement, if the Breakup Fee shall become due and payable in accordance with this Section 10.3, then except in the case of a termination arising from Buyer’s fraud, the Breakup Fee shall be the sole and exclusive remedy of Sellers against Buyer from and after such termination and upon payment of the Breakup Fee in full pursuant to and in accordance with this Section 10.3, Buyer shall have no further Liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as set forth in this Section 10.3. Each of the parties acknowledges that the Breakup Fee is not intended to be a penalty but rather is liquidated damages in a reasonable amount that will compensate Sellers in the circumstances in which such Breakup Fee 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 the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Sellers be entitled to payment of the Breakup Fee on more than one occasion. (c) Each of Buyer and Sellers acknowledges that the agreements contained in this Section are an integral part of the transactions contemplated hereby, and that, without these agreements, Buyer and Sellers would not enter into this Agreement.

Breakup Fee. (a) If this Agreement is terminated by Buyer other than In the event the Seller enters into an alternative transaction pursuant to Section 10.1, 2.07 (an "Alternative Transaction") then the Seller will pay the Purchaser a breakup fee in such event Buyer shall pay the amount equal to Sellers $100,000 (the "Breakup Fee. The Breakup Fee shall "), such amount to be irrevocable and non-refundable, due and payable on August 13, 2025paid within two (2) Business Days following the consummation of such Alternative Transaction. If the Buyer fails to pay the Breakup Fee on August 13is not paid from the proceeds of an Alternative Transaction for any reason, 2025in violation of the terms of the Bankruptcy Court order described in Section 2.06(b) below, the Breakup Fee will be paid as an administrative claim of the bankruptcy estate and shall bear accrue interest from the date required for payment at a per annum rate of 10% per annum. In equal to the event the Buyer fails one month LIBOR rate as in effect from time to pay the Breakup Fee when due, the Buyer shall be responsible for all of Sellers’ collection costs and expenses, including without limitation, all legal fees of the Sellerstime. (b) Notwithstanding anything The Seller agrees to obtain not later than July 14, 2000, an order of the contrary in this Agreement, if Bankruptcy Court (i) approving the Breakup Fee shall become due amount and payable in accordance with this Section 10.3, then except in the case manner of a termination arising from Buyer’s fraud, the Breakup Fee shall be the sole and exclusive remedy of Sellers against Buyer from and after such termination and upon payment of the Breakup Fee described in full pursuant to Section 2.06(a), (ii) determining that, in the event that a proposal for an Alternative Transaction is accepted by the Seller and in accordance with this Section 10.3the Bankruptcy Court for the Servicing Rights, Buyer shall have no further Liability of any kind for any reason in connection with this Agreement or cash proceeds from the termination contemplated hereby other than as set forth in this Section 10.3. Each sale of the parties acknowledges that Servicing Rights equal to the Breakup Fee is not intended encumbered by any lien of any party, pursuant to Section 506(a) and (c) of the Bankruptcy Code or by agreement of otherwise, and further that such proceeds shall be a penalty but rather is liquidated damages in a reasonable amount that will compensate Sellers in the circumstances in which such Breakup Fee is due and payable, used for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation purpose of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Sellers be entitled to payment of paying the Breakup Fee to the Purchaser in accordance with the terms of this Agreement; and (iii) determining that, if the sale of the Servicing Rights to the Purchaser does not occur on more than one occasion. (c) Each of Buyer or before July 31, 2000 or such later date reasonably agreeable to the parties hereto, because an Alternative Transaction is accepted by the Seller and Sellers acknowledges the Bankruptcy Court, that the agreements contained in this Section are an integral part Seller shall pay the Breakup Fee to the Purchaser within two (2) Business Days following the closing of the transactions contemplated hereby, and that, without these agreements, Buyer and Sellers would not enter into this Agreementsuch Alternative Transaction.

Breakup Fee. (a) If this Agreement is terminated by Buyer other than pursuant to Section 10.1, then in such event Buyer shall pay to Sellers the Breakup Fee. The Breakup Fee shall be irrevocable and non-refundable, due and payable on August 13, 2025. If the Buyer fails to pay the Breakup Fee on August 13, 2025, the Breakup Fee shall bear interest at a rate of 10% per annum. In the event that (i) the Buyer Seller sells the Servicing Rights to a third party prior to the Closing Date and the Purchaser has not materially breached its obligations pursuant to this Agreement or (ii) the Seller fails to close the sale of the Servicing Rights to the Purchaser on the Closing Date for any reason, other than due to the bankruptcy of the Purchaser, court order or force majeure, and the Purchaser has satisfied its obligations to close (and is deemed an acceptable successor servicer by the Bond Insurer and Trustee), then the Seller will pay the Breakup Fee when duePurchaser a breakup fee as liquidated damages in the amount equal to $5,000,000, such amount to be paid on or before April 2, 2001 by wire transfer to the Buyer shall be responsible for all of Sellers’ collection costs and expenses, including without limitation, all legal fees of account designated by the SellersPurchaser. (b) Notwithstanding anything In the event that the Purchaser fails to close the purchase of the Servicing Rights from the Seller on the Closing Date for any reason, other than due to the contrary bankruptcy of the Seller, court order or force majeure (assuming the satisfaction of the closing conditions in this AgreementSection 2.04) and the Seller has satisfied its obligations to close, if then the Breakup Fee Purchaser will: (i) pay the Seller a breakup fee as liquidated damages in the amount equal to $5,000,000, such amount to be paid on or before April 2, 2001 by wire transfer to the account designated by the Seller; and (ii) enter into a servicing agreement with respect to the Mortgage Loans that are subject to all the MBS Servicing Agreements identified on Exhibit 6 hereto as of the date hereof, which servicing agreement shall become due (A) provide for the Purchaser to service the Mortgage Loans pursuant to the terms of such MBS Servicing Agreements, the Servicing Standards and payable Accepted Servicing Practices, (B) require the Seller to pay to the Purchaser all Ancillary Income received and a servicing fee which accrues at a rate of 35 basis points per annum, (C) provide for a term of six months, (D) provide for the Purchaser to make Advances required to be made under the MBS Servicing Agreements during such period, and (E) otherwise be mutually agreeable to the Purchaser and the Seller. In addition, the Purchaser shall maintain during such six month period, the related financing facility between the Purchaser and the Seller for any Advances that were previously funded under such facility in accordance with this Section 10.3, then except in the case of a termination arising from Buyer’s fraud, the Breakup Fee shall be the sole and exclusive remedy of Sellers against Buyer from and after such termination and upon payment of the Breakup Fee in full pursuant to and in accordance with this Section 10.3, Buyer shall have no further Liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as set forth in this Section 10.3. Each of the parties acknowledges that the Breakup Fee is not intended to be a penalty but rather is liquidated damages in a reasonable amount that will compensate Sellers in the circumstances in which such Breakup Fee 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 the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Sellers be entitled to payment of the Breakup Fee on more than one occasionterms thereof. (c) Each of Buyer and Sellers acknowledges that the agreements contained in this Section are an integral part of the transactions contemplated hereby, and that, without these agreements, Buyer and Sellers would not enter into this Agreement.

Breakup Fee. Following the occurrence of both the entry of the Bid Procedures Order, and the execution and delivery of this Agreement by Seller and Purchaser, Purchaser shall be entitled to receive back the Deposit, and a breakup fee in an aggregate amount equal to three percent (3%) of the Purchase Price (the “Breakup Fee”) upon the occurrence (each, a “Breakup Fee Trigger Event”) of (a) If this Agreement is terminated the closing of a transaction with an alternate buyer for the Property, whether as a standalone sale of the Property or the sale of the Property as part of a larger transaction to a buyer purchasing a portion or all of the Debtors’ business, including for the avoidance of doubt, a transaction that was consummated following Seller’s exercise of a Fiduciary Out (an “Alternative Transaction”) or (b) the Debtors elect to close an Alternative Transaction but fail to close either the Alternative Transaction by Buyer other than October 30, 3024 or close the transaction with Purchaser as the Back-Up Bidder (as defined below) pursuant to Section 10.15.2.7 hereof, then including due to a failure of a condition set forth in such event Buyer shall pay to Sellers the Breakup FeeSection 10.1 below. The Breakup Fee shall be irrevocable and non-refundableParties agree that, due and payable on August 13, 2025. If the Buyer fails subject to pay the Breakup Fee on August 13, 2025Bankruptcy Court approval, the Breakup Fee shall bear interest at a rate (i) be paid in full from the cash proceeds of 10% per annum. In an Alternative Transaction in the event of an Alternative Transaction and (ii) to the Buyer fails to pay extent not paid from the Breakup Fee when duecash proceeds of an Alternative Transaction, be treated as a super priority administrative expense under section 503 of the Bankruptcy Code with priority over all other administrative expenses of Sellers of the kind specified in section 503(b) of the Bankruptcy Code; provided, that, the Buyer priority of such super priority administrative expense shall be responsible for all of Sellers’ collection costs and expenses, including without limitation, all legal fees of the Sellers. (b) Notwithstanding anything junior to the contrary in this Agreement, if the Breakup Fee shall become due and payable in accordance with this Section 10.3, then except Carve-Out (as defined in the case of a termination arising from Buyer’s fraud, the Breakup Fee shall be the sole and exclusive remedy of Sellers against Buyer from and after such termination and upon payment of the Breakup Fee in full pursuant to and in accordance with this Section 10.3, Buyer shall have no further Liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as set forth in this Section 10.3. Each of the parties acknowledges that the Breakup Fee is not intended to be a penalty but rather is liquidated damages in a reasonable amount that will compensate Sellers in the circumstances in which such Breakup Fee is due and payableDIP Motion) and, for the efforts avoidance of doubt, shall be payable solely upon the DIP ABL Obligations and resources expended Prepetition ABL Obligations being Paid in Full. The parties acknowledge and opportunities foregone while negotiating this Agreement and agree that in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Sellers Seller be entitled required to payment of pay the Breakup Fee on more than one occasion. (c) Each of Buyer and Sellers acknowledges that . Following the agreements contained in this Section are an integral part occurrence of the transactions contemplated herebyBreakup Fee Trigger Event, and that, without these agreements, Buyer and Sellers would not enter into the Breakup Fee shall be payable within (3) Business Days after the closing of an Alternative Transaction from the proceeds of such Alternative Transaction. Seller’s obligation to pay the Breakup Fee shall survive the termination of this Agreement.

Breakup Fee. (a) If this Agreement is terminated prior to the Closing as a result of the termination events set forth in Section 9.1(a), (c), (e) or (f), all monies deposited by Buyer the Purchaser in the Escrow Account together with any interest accrued thereon (net of taxes on such interest required by applicable law to be withheld by the Escrow Agent) shall promptly be delivered to the Purchaser pursuant to the terms of the Escrow Agreement in full and final satisfaction of rights or remedies that the Purchaser may have arising out of any breach of the terms and conditions of this Agreement by the Seller. (b) If this Agreement is terminated prior to Closing as a result of the termination events set forth in Section 9.1(b) or Section 9.1(d) (other than pursuant to Section 10.1, then each of the conditions in such event Buyer shall pay to Sellers Article VIII that are not within the Breakup Fee. The Breakup Fee shall be irrevocable control of Purchaser and non-refundable, due and payable on August 13, 2025. If not satisfied through no fault of the Buyer fails to pay the Breakup Fee on August 13, 2025Purchaser), the Breakup Fee shall bear interest at a rate of 10% per annum. In become payable and the event the Buyer fails to pay the Breakup Fee when due, the Buyer Seller shall be responsible for all of Sellers’ collection costs and expenses, including without limitation, all legal fees of the Sellers. (b) Notwithstanding anything entitled to the contrary in this Agreement, if the Breakup Fee shall become due and payable in accordance with this Section 10.3, then except in the case of a termination arising from Buyer’s fraud, the Breakup Fee shall be the sole and exclusive remedy of Sellers against Buyer from and after such termination and upon demand immediate payment of the Breakup Fee sum guaranteed under the Second Bid Bond in full and final satisfaction of rights or remedies that the Seller may have arising out of any breach of the terms and conditions of this Agreement by the Purchaser and the balance of all sums in the Escrow 16 <PAGE> Account shall promptly be delivered to the Purchaser pursuant to and in accordance with this Section 10.3, Buyer shall have no further Liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as set forth in this Section 10.3. Each terms of the parties acknowledges that the Breakup Fee is not intended to be a penalty but rather is liquidated damages in a reasonable amount that will compensate Sellers in the circumstances in which such Breakup Fee 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 the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Sellers be entitled to payment of the Breakup Fee on more than one occasionEscrow Agreement. (c) Each The Seller undertakes to the Purchaser only to demand payment under a Bid Bond in accordance with the terms of Buyer that Bid Bond. (d) Immediately upon Closing the Seller shall in writing notify The Hongkong and Sellers acknowledges Shanghai Banking Corporation Limited at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (marked for the attention of Tan Puay ▇▇▇ ▇▇▇▇▇ (015948)/Chua Hwee Lan Jacklyn (4189)) that the agreements contained in this Section are an integral part Closing has occurred. (e) If there is a closing of the transactions contemplated herebysale of the Sale Shares by the Seller to a purchaser other than the Purchaser, the Seller shall immediately upon such closing in writing notify the Purchaser and thatThe Hongkong and Shanghai Banking Corporation Limited at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, without these agreements#▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Buyer and Sellers would not enter into this Agreement▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (marked for the attention of Tan Puay ▇▇▇ ▇▇▇▇▇ (015948)/Chua Hwee Lan Jacklyn (4189)) that such closing has occurred.