Break-Up Fee Sample Clauses

Break-Up Fee. On the date the Petitions are filed (the "Petition Date"), RAG shall file a motion (after consulting with and obtaining the input from counsel to UDC) seeking a hearing date on approval of the Transition Agreement in the form attached hereto as Exhibit B, and the Break-Up Fee (as defined below) on or before the tenth day following the Petition Date. Such motion shall request the UDC's claim for the Break-Up Fee be afforded status as a superpriority administrative claim secured by a lien on the Reliance Entities' assets. The Bankruptcy Court order approving the Transition Agreement and the Break-Up Fee shall be reasonably satisfactory in form and substance to each Party hereto (the "Break-Up Fee Order"). The Reliance Entities shall pay to UDC a $2,000,000 fee (the "Break-Up Fee") in the event that after the Bankruptcy Court has entered the Break-Up Fee Order, (a) RAG and UDC execute and deliver the Warrant Agreement and (b)(i) UDC terminates the Transition Agreement, the Servicing Agreement or this Agreement by written notice after the Reliance Entities materially breach the Transition Agreement or this Agreement at any time or the Servicing Agreement prior to the effective date of the Consensual Plan, as applicable (provided that at such time UDC is not then in breach of any of such Agreements); or (ii) the Transactions are not consummated solely as a result of the Reliance Entities' entering into an alternative transaction with a counterparty other than UDC; it being understood that the conditions described in clauses (a) and (b) shall not be satisfied if the Transactions are not consummated due to the failure of a condition to Closing set forth in paragraph 6 below to have been satisfied. UDC shall pay to the Reliance Entities a $2,000,000 fee (the "Reliance Break-Up Fee") in the event that after the Bankruptcy Court has entered the Break-Up Fee Order, the Reliance Entities terminate the Transition Agreement, the Servicing Agreement or this Agreement by written notice after UDC materially breaches the Transition Agreement or this Agreement at any time or the Servicing Agreement prior to the effective date of the Consensual Plan, as applicable (provided that at such time the Reliance Entities are not then in breach of any of such Agreements).

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, an amount of $131,303,723 (the “Break-up Fee”). (b) As security for Buyer’s obligations pursuant to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Af...

Break-Up Fee. In the event that (a) this Agreement terminates pursuant to Section 4.4(e) by Purchaser or pursuant to Section 4.4(h), and (b) a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash an amount (the “Break-Up Fee”) equal to the Cash Amount multiplied by the greater of (i) 3.5%; or (ii) the Alternative Sale Break-Up Fee Percentage (as defined below). The Break-Up Fee shall be paid in cash concurrently with the consummation (which, in the case of a plan of reorganization or liquidation, shall be the effectiveness) of the first Competing Transaction to occur simultaneously with or following the termination of this Agreement, and shall be paid from the first proceeds of such Competing Transaction and from each succeeding Competing Transaction prior to payment of any other claims including claims secured by the assets that are the subject of the Competing Transaction (other than claims arising under the Credit Agreement, dated as of February 3, 2009, among Interstate Bakeries Corporation and certain of its affiliates and General Electric Capital Corporation (as amended, the “ABL Agreement”)) until the Break-Up Fee is paid in full. The Break-Up Fee will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims other than claims arising under the ABL Agreement. Any Break-Up Fee payable pursuant to this Agreement will be allowed and paid, without any further Bankruptcy Court approval or order. Notwithstanding anything to the contrary contained herein, upon timely payment of the Break-Up Fee to Purchaser in accordance with this Section 7.2, Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, will be deemed to have fully released and discharged each other from any Liability resulting from the termination of this Agreement and neither Sellers and their respective representatives and Affiliates, on the one hand, and Parent and Purchaser and their respective representatives and Affiliates, on the other hand, nor any other Person will have any other remedy or cause of action under or relating to this Agreement or any applicable Law, including for reimbursement of expenses. The “Alternative Sale Break-Up Fee Percentage” shall equal the highest breakup fee percentage (whic...

Break-Up Fee. In the event that (1) a Definitive Agreement is not successfully negotiated and entered into, or (2) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after termination of this Letter pursuant to Paragraph K(ii) or termination of the Definitive Agreement, as the case may be, Sulcus or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if (i) the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth in clause (2) occurs due to the failure to obtain the approval of the stockholders of Tridex or Sulcus or any third party consent; provided, that the executive officers and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is an integral part of the Proposed Transaction and that, without this provision, they would not have entered into this Proposed Transaction. Accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail to pay such amount when due pursuant to this paragraph, and, in order to obtain such payment, suit is commenced, the owing party shall pay reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred). The obligations of the parties under this paragraph shall survive the termination of the Binding Provisions.

Break-Up Fee. (a) Notwithstanding the provisions above, other than with respect to the failure of the SEC to provide to the Purchaser its notice of no further comments to the Proxy Statement, in the event that (i) the Closing does not take place on or prior to November 21, 2020 (unless such date is extended pursuant to the payment of the sum of $575,000 as contemplated in Section 3.3(g) above to continue the time period for Purchaser to complete a business combination) due to any material delay (provided such delay does not cause the Purchaser to liquidate under the SPAC Agreements) caused by or any reason attributable to the Company, any member of the Company Group or Shareholders’ Representative, or (ii) there is a valid and effective termination of this Agreement by the Purchaser pursuant to Sections 12.2 (a) or Section 12.3 (a), then the Company shall pay to the Purchaser a break-up fee in cash equal to Three Million Seven Hundred and Fifty Thousand U.S. Dollars ($3,750,000), plus all expenses up to $100,000 actually incurred by or on behalf of the Purchaser or any of its Affiliates in connection with the authorization, preparation, negotiation, execution or performance of this Agreement or the transactions contemplated hereby, including, without limitation, any related SEC filings and the Proxy Statement (such aggregate amount, the “Break-Up Fee”). The Break-Up Fee shall be paid by wire transfer of immediately available funds to an account designated in writing by the Purchaser within five (5) Business Days after the Purchaser delivers to the Company the amount of such expenses, along with reasonable documentation in connection therewith. (b) Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that, with respect to any termination of this Agreement in circumstances where a Break- Up Fee is payable under this Section 12.5, the payment of such Break-Up Fee shall, in light of the difficulty of accurately determining actual damages, constitute liquidated damages with respect to any claim for damages or any other claim which the Purchaser or its Affiliates would otherwise be entitled to assert against the Company, Shareholders’’ Representative or their Affiliates or any of their respective assets, or against any of their respective directors, officers, employees or shareholders with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to the Pur...

Break-Up Fee. In the event that Buyer ------------ ------------ shall announce the execution of this Agreement prior to the 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 ------------------ immediately return the Break-up Fee to Buyer in the event 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 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 2.02, the preceding 7-day period shall be suspended and Buyer shall have no obligation to pay the Break-up Fee to the Company pending the Secretary of State's review and approval of the Merger, for 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, Individual shall promptly pay the Break-up Fee to the Company.

Break-Up Fee. 15.5.1 In the event that this Agreement is terminated by the Company based upon a willful refusal by Lithia to complete this Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 200% of all amounts paid or payable to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the Xxxxxxxx Group in respect of the net profits of the Company. For purposes of this Section 15.5, a willful refusal by any party to complete this Agreement or any Other Reorganization Agreement means either such party's refusal to consummate the transactions contemplated by this Agreement or any Other Reorganization Agreement even though all of the conditions to its obligations to do so have been fulfilled or such party's failure to take any action within its reasonable control that would result in the fulfillment of a condition to such obligations. 15.5.2 In the event that either party terminates this Agreement for reason of the non-fulfillment of the Designated Condition, Lithia shall pay to the Company a break-up fee equal to the sum of (i) $150,000 multiplied by a fraction, the numerator of which is the Net Adjusted Pretax Income of the Company for 1998 and the denominator of which is the aggregate Net Adjusted Pretax Income of all members of the Xxxxxxxx Group for 1998 and (ii) 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the Xxxxxxxx Group in respect of the net profits of the Company. For this purpose, the Designated Condition means the failure of Lithia to have received approvals from any manufacturer represented by the Company or another member of the Xxxxxxxx Group. 15.5.3 In the event that either party terminates this Agreement for any reason other than (i) those set forth in Sections 15.5.1 or 15.5.2 or (ii) a willful refusal by the Company or any of the other members of the Xxxxxxxx Group or their Shareholders to complete the Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the Xxxxxxxx Group in respect of the net profits of the Company. 15.5.4 The break-up fees payable under this Section 15.5 shall be due at the time this Agreement is terminated. Should the transactions contempl...

Break-Up Fee. If Ontro fails to close a committed purchase of Shares for no less then $1.00 per share from a Purchaser who is ready, willing, and able to purchase Shares constituting directly or indirectly a minimum of 200,000 Shares for a minimum of $200,000 up to a maximum of 1,600,000 Shares for $1,600,000, and such purchase is on other terms that are acceptable to Ontro, which acceptance shall not be unreasonably withheld, then Ontro shall pay Aura the fees set forth in paragraph A. 2 above notwithstanding Ontro did not receive the funds or sell the Shares. The Performance Warrant issued to Aura in such case shall have all of the same registration rights and other rights set forth in Section C, below.

Break-Up Fee. If any of the PGI Parties or any of their Representatives violates paragraph 3 or paragraph 4(a), (b), (c) or (d) of this Agreement, then, as liquidated damages for the violation of such provisions, the PGI Parties (other than Primestone) shall pay to Cadim an amount equal to $5,000,000. In addition, in the event that Cadim delivers the Notice and if, after the end of the Thirty-Day Period (as defined in the PGE SSA), but before the expiration of the Fifteen-Day Period (as defined in the PGE SSA), PGE decides to pursue any Superior Acquisition Proposal (as defined in the PGE SSA) with a price (or valuation) in excess of $15.00 per common share of beneficial interest, the PGI Parties shall pay to Cadim in cash within 5 business days of the closing of the transaction contemplated by the Superior Acquisition Proposal, an amount equal to 50% of the aggregate value received by the PGI Parties in excess of $15.00 per common share of beneficial interest.

Break-Up Fee. In the event that this Agreement is terminated as a result of a breach of this Agreement by the Company, failure of the Company to obtain any required consents or approvals, or in connection with the Company entering into another transaction, the Company will pay Purchaser in same day funds a cash fee of $300,000 immediately upon termination.