Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c), an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”.

Break-Up Fee. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 1,600,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h7.01(g), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c)Agreement, an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e7.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a7.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”.

Break-Up Fee. In the event the Court enters an order authorizing Seller to sell substantially all of the Business (through a sale of assets, sale of stock, merger or otherwise) to a third party pursuant to an offer made in response to notice of the motion for the Sale Order ("Alternative Transaction"), and provided this Agreement has not been terminated because of a material breach of Buyer's obligations, representations or warranties hereunder, and provided neither Buyer nor any other person or entity controlled by Buyer has appealed the order of the Court approving the Alternative Transaction, and subject to the further provisions of this Section 9.5, Seller will pay to Buyer One Hundred Thousand Dollars ($100,000.00) ("Break-up Fee"), plus Buyer's aggregate actual and reasonable out-of-pocket expenses incurred in connection with this Agreement including without limitation Buyer's attorney's fees and costs incurred in connection with this Agreement and the Loan Agreement (not to exceed an additional Fifty Thousand Dollars ($50,000.00) ("Buyer's Expenses")). The Break-up Fee will become due in immediately available funds upon, but will only become due in the event of, the earlier to occur (if either) of (a) In recognition closing of an Alternative Transaction, or (b) failure of Seller to offer irrevocably to Buyer the Assets pursuant to order of the effortsCourt and on the terms of this Agreement, as improved to Seller by Buyer (if at all) at the hearing on the motion for the Sale Order, within ten (10) days after entry of the order of the Court approving the Alternative Transaction (or, in the event such order is stayed pending appeal, within the earlier of twenty (20) days after entry of such order or ten (10) days after lifting of such stay), subject only to Buyer closing such purchase of Assets within ten (10) days after such offer (or, if applicable, after the lifting of such stay). Buyer will submit a summary of out-of-pocket expenses and other opportunities foregone by attorneys fees to Seller for payment. Buyer while structuring and pursuing Seller shall submit the Mergerexpenses for the approval of the Court, Company shall pay to Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer only in the event of any a dispute of Buyer and Seller over the following: (i) Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification reasonableness of such termination; and (ii) after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c), an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”expenses.

Break-Up Fee. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 750,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h7.01(g), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c)Agreement, an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c7.01(c) or Section 8.01(f7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e7.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a7.03(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”.

Break-Up Fee. (a) In recognition of the effortsIf this Agreement is terminated, expenses and, if, and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the followingonly if: (i) Buyer terminates the General Partner has withdrawn the GP Recommendation (except as a result of a Purchaser Default); (ii) Seller, the General Partner or WHLP shall have terminated or caused to be terminated this Agreement pursuant to Section 8.01(g7.11; or (iii) or Company terminates (x) this Agreement pursuant is terminated as a result of Seller's failure or inability to Section 8.01(h)obtain the Seller Approval prior to the Seller Approval Date, Company (y) within six (6) months after such termination Seller, the General Partner or WHLP shall pay Buyer have executed an agreement relating to a transaction contemplated by any Acquisition Proposal made by any Person or Affiliate thereof who had disclosed to Seller, WHLP or the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) General Partner any Acquisition Proposal made after the date of this Agreement and the Letter of Intent but prior to the termination of this Agreement (or prior to the Company Meeting in the case of "a termination pursuant to Section 8.01(cNEW TRANSACTION AGREEMENT"), an Acquisition Proposal and (z) Seller, the General Partner or WHLP shall have entered into a binding definitive agreement (a "DEFINITIVE AGREEMENT") with the other party to such New Transaction Agreement as to which Definitive Agreement all contingencies shall have been made known satisfied or waived (other than customary closing conditions relating to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawnSeller's performance) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is within twelve (12) months after the date of such termination, Company enters into any agreement then Seller shall pay to consummatePurchaser a fee in the amount of Six Million Two Hundred and Fifty Thousand Dollars ($6,250,000.00) (the "BREAK-UP FEE"); provided, or consummateshowever, an Acquisition Transaction (whether or not in no event shall the same Acquisition Transaction which was the subject sum of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes up Fee and the Out of this Pocket Expenses reimbursed to Purchaser pursuant to Section 8.02(a12.3(b) exceed an aggregate amount of Eight Million Two Hundred and Fifty Thousand Dollars ($8,250,000.00) ("Fee Cap"), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”.

Break-Up Fee. The Purchaser shall be entitled to immediate payment of a compensatory termination fee (the "Break-up Fee") in cash in an amount equal to $2,800,000, if: (a) In recognition (i) the Bankruptcy Court does not issue the Sale Approval Order within 45 days after the date of the effortsPreliminary Hearing or approves a higher and better bid than that submitted by the Purchaser, expenses (ii) the Closing of a Sale to the Successful Bidder (but not the Purchaser) has occurred and other opportunities foregone by Buyer while structuring and pursuing (iii) the MergerPurchaser is not then in material breach of this Agreement; (b) the Bankruptcy Court confirms a plan of reorganization for the Sellers, Company shall pay to Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of which plan transfers any of the following: Purchased Assets to a person other than the Purchaser and such plan of reorganization is consummated and the Purchaser is not then in material breach of this Agreement; (c) the Purchaser is not in material breach of this Agreement and the Sellers (i) Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer withdraw the Break-Up Fee within two (2) Business Days after receipt motion for Bankruptcy Court approval of Buyer’s notification of such termination; the Sale and (ii) after subsequently liquidate or otherwise dispose of the date Purchased Assets, in one or a series of this Agreement transactions; or (d) the Sellers withdraw the motion for Bankruptcy Approval of the Sale and prior to an Alternative Transaction is pursued. Until paid, the termination of this Agreement (or prior to Break-up Fee shall be allowed by the Company Meeting in the case of a termination Bankruptcy Court as an administrative claim pursuant to Section 8.01(c), an Acquisition Proposal shall have been made known to 503(b)(1)(A) of the Company Board Bankruptcy Code with priority over any or senior management all other administrative expenses in the Chapter 11 Cases of Company or has been made directly to its shareholders generally (and not withdrawnthe kind specified in Sections 503(b) or any Person shall have publicly announced (and not withdrawn507(b) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without of the Requisite Company Shareholder Approval having been obtained) Bankruptcy Code, or if this Agreement is terminated by Buyer pursuant the Chapter 11 Cases are converted to Section 8.01(e) as Chapter 7 cases. This provision shall be a result of willful and intentional breach of a covenant by Companyrequirement of, approved by, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a), all references incorporated in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”Bidding Procedures Order.

Break-Up Fee. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 560,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h7.01(g), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c)Agreement, an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c7.01(c) or Section 8.01(f7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e7.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a7.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”.

Break-Up Fee. (a) In recognition the event that Buyer ------------ ------------ shall announce the execution of this Agreement prior to the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing consummation of the Merger, then, in the event that the Merger is not consummated prior to 5:00 p.m. Eastern Standard Time on the later to occur of (i) the seventh day after the execution of this Agreement or (ii) the day on which all of the Company's and the Shareholders' conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 of this Agreement are satisfied in full (assuming for purposes of this clause (ii) the full satisfaction of any conditions which were not satisfied solely because Buyer acted or failed to act with the intention of causing such failure of satisfaction), Buyer shall immediately pay the Company the sum of Two Hundred Thousand dollars ($200,000) cash (the "Break-up Fee"), provided, however, that the Company shall pay to Buyer a break------------------ immediately return the Break-up fee equal Fee to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any that the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations for the consummation of the following: (i) Buyer terminates this Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full of the conditions to the Buyer's obligations set forth in Section 9.02 and the filing of the Agreement of Merger with the Secretary of State of the State of California pursuant to Section 8.01(g) or Company terminates this Agreement pursuant 2.02, the preceding 7-day period shall be suspended and Buyer shall have no obligation to Section 8.01(h), Company shall pay Buyer the Break-Up up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in pending the case Secretary of a termination pursuant to Section 8.01(c), an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (State's review and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject approval of the foregoing Acquisition Proposal))Merger, then Company shallfor so long as the parties are engaged in efforts to obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, Individual shall promptly pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a), all references in up Fee to the definition of Acquisition Transaction to “15%” shall instead refer to “50%”Company.

Break-Up Fee. In the event that (a) In recognition this Agreement is terminated, other than by reason of termination due to fraud of WEC as described in Section 9.6, and, within 18 months of the effortsdate of this Agreement, expenses the Company enters into an agreement for, or otherwise consummates, any of the transactions described in Section 6.12, or (b) the Company's shareholders do not approve this Agreement and other opportunities foregone by Buyer while structuring and pursuing the Merger, or (c) this Agreement is terminated by WEC pursuant to Section 9.5(e), or (d) this Agreement is terminated by the Company pursuant to Section 9.5(f), then, in each case the Company shall immediately advise WEC in writing and, further, shall pay to Buyer WEC, on demand, the sum of Four Million United States Dollars (US$4,000,000) in immediately available funds, as liquidated damages. In addition, in the event that the Closing does not occur prior to December 31, 1998 due to a breach by the Company or WEC of its respective obligations to satisfy the conditions to closing set forth in Article VII of this Agreement, the party which so breaches shall pay to the non-defaulting party, on demand, the sum of Four Million United States Dollars (US $4,000,000) in immediately available funds, as liquidated damages; PROVIDED, HOWEVER, that in the case of WEC, neither WEC, WIC nor any other member of the WEC Group shall be required to pay a break-up fee equal if the failure to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds close is due to an account specified by Buyer in the event of any of the following: (i) Buyer terminates this Agreement pursuant to Section 8.01(g) there shall have occurred a material adverse change in the financial condition, results of operations or business of the Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) after from the date of this Agreement and prior through the Closing Date, as determined in good faith by the board of directors of WEC; (ii) the Department of Justice and/or the Federal Trade Commission has not given written notice of the expiration of the waiting period under the HSR Act or has notified the Company or WEC of its or their intention to take action to stop or delay the termination Merger; (iii) there shall be pending or threatened litigation, or other proceeding or similar action (other than R.O.C. governmental approval) seeking to enjoin or otherwise stop or delay the Merger or (iv) there shall have been an uncured breach by the Company of its representations, warranties, covenants or agreements set forth in this Agreement (or prior to the Company Meeting or its agents or shareholders shall have failed to satisfy a condition precedent to WEC's obligations to close; and, in the case of the Company, the Company shall not be required to pay a termination pursuant break-up fee if the failure to Section 8.01(c)close is due to any of the following: (i) the Department of Justice and/or the Federal Trade Commission has not given written notice of the expiration of the waiting period under the HSR Act or has notified the Company or WEC of its or their intention to take action to stop or delay the Merger; (ii) there shall be pending or threatened litigation, an Acquisition Proposal or other proceeding or similar action seeking to enjoin or otherwise stop or delay the Merger; or (iii) there shall have been made known an uncured breach by WEC of its representations, warranties, covenants or agreements set forth in this Agreement or WEC or its agents shall have failed to satisfy a condition precedent to the Company Board or senior management of Company or has been made directly Company's obligation to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”close.

Break-Up Fee. The Purchaser shall be entitled to immediate payment of a compensatory termination fee (the “Break-up Fee”) in cash in an amount equal to $2,800,000, if: (a) In recognition (i) the Bankruptcy Court does not issue the Sale Approval Order within 45 days after the date of the effortsPreliminary Hearing or approves a higher and better bid than that submitted by the Purchaser, expenses (ii) the Closing of a Sale to the Successful Bidder (but not the Purchaser) has occurred and other opportunities foregone by Buyer while structuring and pursuing (iii) the MergerPurchaser is not then in material breach of this Agreement; (b) the Bankruptcy Court confirms a plan of reorganization for the Sellers, Company shall pay to Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of which plan transfers any of the following: Purchased Assets to a person other than the Purchaser and such plan of reorganization is consummated and the Purchaser is not then in material breach of this Agreement; (c) the Purchaser is not in material breach of this Agreement and the Sellers (i) Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer withdraw the Break-Up Fee within two (2) Business Days after receipt motion for Bankruptcy Court approval of Buyer’s notification of such termination; the Sale and (ii) after subsequently liquidate or otherwise dispose of the date Purchased Assets, in one or a series of this Agreement transactions; or (d) the Sellers withdraw the motion for Bankruptcy Approval of the Sale and prior to an Alternative Transaction is pursued. Until paid, the termination of this Agreement (or prior to Break-up Fee shall be allowed by the Company Meeting in the case of a termination Bankruptcy Court as an administrative claim pursuant to Section 8.01(c), an Acquisition Proposal shall have been made known to 503(b)(1)(A) of the Company Board Bankruptcy Code with priority over any or senior management all other administrative expenses in the Chapter 11 Cases of Company or has been made directly to its shareholders generally (and not withdrawnthe kind specified in Sections 503(b) or any Person shall have publicly announced (and not withdrawn507(b) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without of the Requisite Company Shareholder Approval having been obtained) Bankruptcy Code, or if this Agreement is terminated by Buyer pursuant the Chapter 11 Cases are converted to Section 8.01(e) as Chapter 7 cases. This provision shall be a result of willful and intentional breach of a covenant by Companyrequirement of, approved by, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a), all references incorporated in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”Bidding Procedures Order.

Break-Up Fee. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 750,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h7.01(g), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c)Agreement, an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c7.01(c) or Section 8.01(f7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e7.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a7.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”.

Break-Up Fee. (a) In recognition of the effortsIf this Agreement is terminated, expenses and, if, and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the followingonly if: (i) Buyer terminates the General Partner has withdrawn the GP Recommendation (except as a result of a Purchaser Default); (ii) Seller, the General Partner or WHLP shall have terminated or caused to be terminated this Agreement pursuant to Section 8.01(g8.11(c); or (iii)(x) or Company terminates this Agreement is terminated pursuant to the terms of Section 8.01(h)4.1, Company (y) within six (6) months after such termination Seller, the General Partner or WHLP shall pay Buyer have executed an agreement relating to a transaction contemplated by a Superior Acquisition Proposal made by any Person or Affiliate thereof who had disclosed to Seller, WHLP or the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) General Partner a Superior Acquisition Proposal made after the date of this the Access Agreement and but prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c“New Transaction Agreement”), an Acquisition Proposal and (z) Seller, the General Partner or WHLP shall have entered into a binding definitive agreement for such contemplated transaction (“Definitive Agreement”) with the other party to such New Transaction Agreement as to which Definitive Agreement all 52 contingencies shall have been made known satisfied or waived (other than customary closing conditions relating to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawnSeller’s performance) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is within twelve (12) months after the date of such termination, Company enters into any agreement then Seller shall pay to consummatePurchaser a fee in the amount of $3,500,000 (the “Break-Up Fee”); provided, or consummateshowever, an Acquisition Transaction (whether or not in no event shall the same Acquisition Transaction which was the subject sum of the foregoing Acquisition Proposal)Break-Up Fee and the Out of Pocket Expenses reimbursed to Purchaser pursuant to this Section 13.3 exceed the aggregate amount of $4,627,500 (the “Fee Cap”), then Company shall, on provided that Purchaser provides Seller with a written general release of Seller’s liabilities and obligations with respect to this Agreement and the earlier Hotel upon Seller’s payment of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”.

Break-Up Fee. (a) In a)In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c), an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 8.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”.