Break-Up Fee and Expense Reimbursement. If, following the entry of the Scheduling Order, this Agreement is terminated (i) by Sellers pursuant to Section 13.1(b) or by Buyer pursuant to Sections 13.1(c) or (g) or (ii) by either Party pursuant to Section 13.1(f), Sellers agree to pay to Buyer:
(i) an amount equal to $1,878,500 (which is an amount equal to two and one half percent (2.5%) of the value attributable by Buyer to the Break-Up Fee Assets, which, solely for purposes of calculating the Break-Up Fee and for no other purpose, is hereby fixed by Buyer at Seventy-Five Million One Hundred Thousand Dollars ($75,100,000)) as a break up fee (the “Break-Up Fee”); and
(ii) an amount in respect of the reasonable expenses of outside counsel in connection with drafting, negotiating and performing this Agreement and fees and other reasonable expenses incurred in connection herewith (including, without limitation, any filing fees (including with respect to the HSR Act), or other amounts seeking the approvals necessary and appropriate to consummate the Transaction), in each case as actually incurred by Buyer (but not exceeding Five Hundred Thousand Dollars ($500,000) in the aggregate) (the “Expense Reimbursement”). The combined Break-Up Fee and Expense Reimbursement shall be payable by Sellers as a superpriority administrative expense claim (and, in the case of the Break-Up Fee, shall be payable by Sellers without the need for further application or request filed with the Bankruptcy Court) to Buyer in cash, by wire transfer of immediately available funds to an account designated by Buyer. In the event the Break-Up Fee and Expense Reimbursement become payable for any reason other than the sale of all or any portion of the Subject Assets to a Person other than Buyer, Sellers shall pay to Buyer the Break-Up Fee and Expense Reimbursement on the earlier of (A) the effective date of any chapter 11 plan confirmed in the Bankruptcy Case, or (B) one (1) year after the Petition Date. In the event the Break-Up Fee and Expense Reimbursement become payable because of the sale of all or any portion of the Subject Assets (including as part of a Competing Transaction) to a Person other than Buyer, Sellers shall pay to Buyer the Break-Up Fee and Expense Reimbursement contemporaneously with the consummation of a Competing Transaction or other applicable sale of the Subject Assets or any portion thereof. The combined Break-Up Fee and Expense Reimbursement shall be paid in recognition of the substantial costs incurred by Buy...
Break-Up Fee and Expense Reimbursement. Notwithstanding anything in this Agreement to the contrary, from and after entry of the Bidding Procedures Order, Sellers agree to pay Buyer both the Expense Reimbursement and the Break-Up Fee in the event this Agreement is terminated if and to the extent provided in Section 11.2. The Parties acknowledge and agree that the terms and conditions set forth in Section 11.2 with respect to the payment of the Break-Up Fee shall become operative only if and to the extent that the Bankruptcy Court enters the Bidding Procedures Order.
Break-Up Fee and Expense Reimbursement. (a) The obligations to pay (i) the Break-Up Fee and the Expense Reimbursement as provided herein and (ii) any amounts payable pursuant to Article 9, in each case, will be entitled to superpriority administrative expense status pursuant to Sections 503(b) and 507(a)(2) of the Bankruptcy Code, senior to all other administrative expense claims in the Bankruptcy Cases.
(b) Each Party agrees and acknowledges that Purchaser’s due diligence, efforts, negotiation and execution of this Agreement have involved substantial investment of management time and have required significant commitment of financial, legal and other resources by Purchaser and its Affiliates, and that such due diligence, efforts, negotiation and execution have provided value to the Debtors and their respective Affiliates. The provision of the Break-Up Fee and Expense Reimbursement is an integral part of this Agreement, without which Purchaser would not have entered into this Agreement.
Break-Up Fee and Expense Reimbursement. 12.1 If an alternative transaction with respect to the Acquired Assets (an “Alternative Transaction”) is consummated, the Purchaser shall be entitled to a break up fee (the “Break Up Fee”) in the aggregate amount of 3% of the cash portion of the Payment Amount and expense reimbursement for up to $50,000 in reasonable and documented out of pocket expenses (the “Expense Reimbursement”). The Break Up Fee and Expense Reimbursement shall be paid at the closing of, and shall be a condition to the consummation of, the Alternative Transaction, and the amounts used to pay the Break Up Fee and Expense Reimbursement shall not constitute Asset Proceeds.
Break-Up Fee and Expense Reimbursement. If, following the entry of the Scheduling Order, this Agreement is terminated (i) by Sellers pursuant to Section 13.1(b) or by Buyer pursuant to Sections 13.1(c) or (g) or (ii) by either Party pursuant to Section 13.1(f), Sellers agree to pay to Buyer:
(i) a break up fee, as applicable, and the amount of which, as determined as follows (the “Break-Up Fee”):
(A) if such termination is pursuant or due to, or arises because of, the entry of an Order approving a sale of all of the Subject Assets pursuant to a Credit Bid, an amount equal to $500,000; or
(B) if such termination is pursuant or due to, or arises because of, (I) the entry of an Order approving a sale of all (other than as described in subclause (A) above) or any portion of the Subject Assets to any Person other than the Buyer, including, without limitation, any sale pursuant to a Credit Bid for a purchase of any (but not all) Subject Assets, or any such sale shall occur (without the entry of an Order) or (II) the Sellers shall determine to retain (and not sell) all or any portion of the Subject Assets, an amount equal to (x) $1,878,500 times a percentage allocation to such Subject Assets (as set forth on Schedule 9.1(e)) that are determined to be retained by the Sellers or for which a sale to any Person other than Buyer is approved or occurs, other than a sale pursuant to a Credit Bid for the purchase of any (but not all) Subject Assets, plus (y) $500,000 times a percentage allocation to such Subject Assets (as set forth on Schedule 9.1(e)) for which a sale is approved or occurs pursuant to a Credit Bid for the purchase of any (but not all) Subject Assets; and
(ii) a reimbursement amount in respect of the reasonable expenses of outside counsel in connection with drafting, negotiating and performing this Agreement and fees and other reasonable expenses incurred in connection herewith (including, without limitation, any filing fees (including with respect to the HSR Act), or other amounts seeking the approvals necessary and appropriate to consummate the Transaction) (the “Expense Reimbursement”), as applicable, and the amount of which, as determined as follows:
(A) if such termination is pursuant or due to, or arises because of, the circumstance described in Section 9.1(e)(i)(A) above, then there shall not be any reimbursement of such expenses;
(B) if such termination is pursuant or due to, or arises because of, the circumstances described in Section 9.1(e)(i)(B) above, an amount equal to $500,000 ti...
Break-Up Fee and Expense Reimbursement. (a) Stayton agrees (in addition to all other rights and remedies as Purchaser may have hereunder and subject to entry of the Auction Order), to pay to Purchaser an amount equal to the sum of (a) the Expense Reimbursement; plus (b) the Break-Up Fee, which sum of the Expense Reimbursement and the Break-Up Fee shall be payable to Purchaser in accordance with Section 10.2(c), in the event that: (x) Stayton willfully fails to close the transactions contemplated by this Agreement after the Court enters the Sale Approval Order, (y) the Court approves a sale of the Properties in favor of a Successful Bidder other than Purchaser or Purchaser's assignee or (z) the sale of the Properties to Purchaser pursuant to this Agreement does not occur because the Court, after entry of the Auction Order, confirms a plan of reorganization that does not include the sale of the Properties to Purchaser pursuant to this Agreement (including, without limitation, the Bid Procedures). For avoidance of doubt, Stayton shall not be deemed to have willfully failed to Close the transactions contemplated by this Agreement solely because of Xxxxxxx'x breach or failure to comply with any of Xxxxxxx'x representations or warranties hereunder or due to failure of any condition contained in Section 7.1, unless such misrepresentation by Stayton or failure to satisfy a closing condition by Stayton is willful.
(b) Purchaser and Stayton agree that the expenses incurred by Purchaser as of the date of this Agreement which would be subject to Expense Reimbursement under this Agreement is $4,156,105.80 (the "Stipulated Prior Expenses"). In addition to the Stipulated Prior Expenses, upon termination of this Agreement by Purchaser, Purchaser shall advise Stayton of the total amount of expenses for which it seeks reimbursement pursuant to the Expense Reimbursement, which notice shall include an itemized statement of such costs. Any dispute with respect to the Expense Reimbursement shall be submitted to the Court by motion.
(c) In the event that any Expense Reimbursement or Break-Up Fee is due pursuant to this Section 10.2, Stayton shall make such payment to Purchaser by wire transfer of immediately available federal funds to an account to be designated by Purchaser on the following dates:
(i) in the event that the Expense Reimbursement or Break-Up Fee is due as a result of clause (x) in Section 10.2(a), then Stayton shall pay such amounts within ten
Break-Up Fee and Expense Reimbursement. (a) The parties hereto acknowledge and agree that the terms and conditions set forth in this Section 8.3 with respect to the payment of the Break-Up Fee and Expense Reimbursement shall only become operative if and to the extent that the Bankruptcy Court enters the Sale Procedures Order approving such terms and conditions, it being understood and agreed that the consummation of the transactions contemplated by this Agreement shall be conditioned upon the approval by the Bankruptcy Court of the provisions of the Sale Procedures Order and the entry of an order with respect thereto. In the event that this Agreement is terminated by (A) Buyer pursuant to Sections 8.1(d) (unless Buyer’s right to termination arose solely under clause (i) of Section 8.1(d) as a result of one or more inaccuracies of Sellers’ representations and warranties that, to the knowledge of Sellers, were true and correct in all material respects as of the date of this Agreement), 8.1(f)(i), 8.1(f)(v), 8.1(g), or 8.1(j) or (B) Buyer or Sellers’ Representative, as applicable, pursuant to Section 8.1(h), then Buyer shall have an Allowed Termination Claim equal to the amount of the Break-Up Fee and Sellers shall pay the Break-Up Fee to Buyer in cash in accordance with this Section 8.3. In addition, if (I) (x) this Agreement is terminated pursuant to Section 8.1(b) or 8.1(c), and the condition set forth in Section 7.2(j) is not satisfied or (y) this Agreement is terminated by Buyer pursuant to Section 8.1(d) and Buyer’s right to termination arose solely under clause (i) of Section 8.1(d) as a result of one or more inaccuracies of Sellers’ representations and warranties that, to the knowledge of Sellers, were true and correct in all material respects as of the date of this Agreement and (II) Buyer has complied in all material respects with all obligations required under this Agreement to be performed by it through the date of such termination, then Buyer shall have an Allowed Termination Claim equal to the amount of the Expense Reimbursement, and Sellers shall pay the Expense Reimbursement to Buyer in cash in accordance with this Section 8.3. Payment of the Break-Up Fee or the Expense Reimbursement, as applicable, pursuant to this Section 8.3 shall be made on the earlier of (i) the date on which Sellers consummate an Alternative Transaction, including, but not limited to, a sale, recapitalization or securitization, (ii) the effective date of a plan of reorganization for one or more of the Sellers ...
Break-Up Fee and Expense Reimbursement. If all or substantially all of the Assets are sold to a third party in connection with the Seller Bankruptcy, other than any such sale following either (a) a termination of this Agreement by Buyer or the exercise by Buyer of a right not to consummate the Closing because of the failure of a Closing Condition in Section 7.1(a) or (b) or Section 7.3(c) or (e) to be satisfied or (b) a termination of this Agreement by Seller or the exercise by Seller of a right not to consummate the Closing because of the failure of a Closing Condition in Section 7.1(a) or (b) or Section 7.2 to be satisfied, then Buyer will be entitled to receive from Seller $17,000,000 plus reasonable, documented out of pocket fees and expenses not to exceed $1,000,000 in the event the Assets are sold to a third party payable by wire transfer in immediately available funds at the closing of such sale.
Break-Up Fee and Expense Reimbursement. In the event the Bankruptcy Court (i) enters an order approving an offer to purchase the Transferred Assets submitted by an Alternative Purchaser, and (ii) such Alternative Purchaser closes on the sale with the Sellers, then Buyer will be entitled to receive a break-up fee out of the proceeds of the consummated sale in an amount equal to 3.5% of the Cash Consideration (the “Break-Up Fee”), plus Buyer’s reasonable out-of-pocket expenses, including the fees and expenses of Buyer’s attorneys and other professionals and advisors incurred in connection with the negotiation, execution and consummation of this Agreement (which expenses shall not exceed $300,000) (the “Expense Reimbursement”). Payment of the Break-Up Fee and Expense Reimbursement shall be made by wire transfer of immediately available U.S. funds to an account designated by Buyer from the proceeds of a sale to an Alternative Purchaser, with such payment to be made immediately upon the consummation of such sale. Until paid, the Break-Up Fee and Expense Reimbursement shall be allowed as administrative expenses pursuant to section 503(b)(1)(A) of the Bankruptcy Code.
Break-Up Fee and Expense Reimbursement. In the event that Seller (i) accepts a Bid, other than that of Buyer, as the highest or best offer (an "Auction Transaction"), (ii) sells, transfers, leases or otherwise disposes directly or indirectly, including through an asset sale, stock sale, merger, reorganization or other similar transaction (by the Acquired Companies or otherwise), all or substantially all or a material portion of the Purchased
