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 $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 7.01(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, 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to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful 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 and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(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 $1,600,000 615,000 (“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) in the event Buyer terminates this Agreement pursuant to Section 7.01(g8.01(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) in the event that after the date of this Agreement and prior to the termination of this AgreementAgreement (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 7.01(f8.01(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 7.01(e8.01(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 and or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(a8.02(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 $1,600,000 560,000 (“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 7.01(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, 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 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful 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 and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(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 $1,600,000 750,000 (“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 7.01(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, 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 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful 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 and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(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, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $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 7.01(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, 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 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful a breach of a covenant by Companythe Seller, the Closing does not occur by the Outside Date, and (B) prior to the date that is within twelve (12) months after the date Outside Date, either Seller or the Company closes a transaction relating to the acquisition 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 ProposalStock or a material portion of the Company's assets or business (other than in a transaction involving a business combination of the Seller, including a merger or sale of all or substantially all of the assets or stock of Seller), then in whole or in part, whether through a purchase, merger, consolidation or other business combination of the Company shall(collectively, on a "Subsequent Sale"), then, immediately upon such closing, and in addition to all other remedies herein contained, Seller shall pay (or cause the earlier Company to pay) to Purchaser the sum of One Million Dollars ($1,000,000) (the "Break-up Fee"). Notwithstanding the foregoing, such Break-up Fee shall be payable by Purchaser to Seller in the event that the Closing does not occur as specified above due to any breach by Purchaser. Additionally, in the event of termination by Seller under Section 16(a)(iv)(C) as a result of failing to obtain an affirmative fairness opinion, the Break-up Fee shall be due from Seller to Purchaser in the event of a Subsequent Sale within the twelve (12) month period described above at a price equal to or less than Thirty Three Million Dollars ($33,000,000), provided that at such time, the Company does not have substantially less book value or annual income than as of the date it enters into such agreement hereof or events beyond the control of Seller dictate the sale of the Company at an amount equal to or less than $33,000,000 (i.e. a material adverse change in the Seller's financial condition). If Purchaser is not entitled to the Break-up Fee pursuant to the foregoing sentence, then for a period of one (1) year after the Outside Date, in the event that Seller or Company receive an offer from an outside offeror to acquire any or all of the Stock or all or any material part of the assets of the Company, Seller shall give Purchaser written notice thereof, and Purchaser shall have a right of first refusal for the purchase upon the same terms contained in the outside offer, which right of first refusal shall be exercised by written notice from Purchaser to Seller within thirty (30) days of the date of consummation Seller's original notice. If Purchaser exercises the foregoing right of such transactionfirst refusal, pay Buyer then Seller or the Break-Up FeeCompany (as the case may be) shall be obligated to sell to Purchaser the Stock or assets covered by the outside offer in accordance with the terms of the outside offer. In the event that Purchaser does not exercise the right of first refusal, providedthen Seller or the Company (as the case may be) shall have the right for a period of four months to sell to the outside offeror the Stock or assets covered by the outside offer in accordance with the terms of the outside offer, that for purposes of this Section 7.02(a), all references in the definition of Acquisition Transaction without having to “15%” shall instead refer to “50%”give Purchaser additional notice.

Break-Up Fee. If this Agreement is terminated, and, if, and only if: (ai) In recognition 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 8.11(c); or (iii)(x) this Agreement is terminated pursuant to the terms of Section 4.1, (y) within six (6) months after such termination Seller, the General Partner or WHLP shall 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 General Partner a Superior Acquisition Proposal made after the date of the effortsAccess Agreement but prior to the termination of this Agreement (“New Transaction Agreement”), expenses 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 opportunities foregone by Buyer while structuring and pursuing the Mergerparty to such New Transaction Agreement as to which Definitive Agreement all 52 contingencies shall have been satisfied or waived (other than customary closing conditions relating to Seller’s performance) within twelve (12) months after such termination, Company then Seller shall pay to Buyer Purchaser a break-up fee equal to in the amount of $1,600,000 3,500,000 (the “Break-Up Fee”); provided, by wire transfer however, in no event shall the sum 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 7.01(g), Company shall pay Buyer the Break-Up Fee within two and the Out of Pocket Expenses reimbursed to Purchaser pursuant to this Section 13.3 exceed the aggregate amount of $4,627,500 (2) Business Days after receipt the “Fee Cap”), provided that Purchaser provides Seller with a written general release of BuyerSeller’s notification of such termination; liabilities and (ii) in the event that after the date of obligations with respect to this Agreement and prior to the termination Hotel upon Seller’s payment of this 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 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful 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 and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(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 $1,600,000 750,000 (“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 7.01(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, 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 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful 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 and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(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 $1,600,000 (“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) Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full of the event Buyer terminates this 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 7.01(g)2.02, Company the preceding 7-day period shall be suspended and Buyer shall have no obligation to pay Buyer the Break-Up 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, an Acquisition Proposal shall have been made known to the Company Board or senior management pending the Secretary 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 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful 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 shall, on for so long as the earlier parties are engaged in efforts to obtain such approval. If the Secretary of the date it enters into such agreement State's approval is not so obtained and the date of consummation of Merger does not become effective due to Individual's failure to proceed with such transactionefforts, Individual shall promptly pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(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 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 $1,600,000 (“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) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), 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) in the event that after the date of this Agreement and prior to the termination of this 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 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful 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 and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”expenses.

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 $1,600,000 (“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) in withdraw the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay Buyer motion for Bankruptcy Court approval of the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; Sale and (ii) subsequently liquidate or otherwise dispose of the Purchased Assets, in one or a series of transactions; or (d) the event that after Sellers withdraw the date motion for Bankruptcy Approval of this Agreement the Sale and prior to an Alternative Transaction is pursued. Until paid, the termination of this Agreement, Break-up Fee shall be allowed by the Bankruptcy Court as 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 administrative claim pursuant to Section 7.01(f503(b)(1)(A) (without of the Requisite Company Shareholder Approval having been obtainedBankruptcy Code with priority over any or all other administrative expenses in the Chapter 11 Cases of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code, or if this Agreement is terminated by Buyer pursuant the Chapter 11 Cases are converted to Section 7.01(e) as Chapter 7 cases. This provision shall be a result of willful 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 and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(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 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 $1,600,000 615,000 (“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) in the event Buyer terminates this Agreement pursuant to Section 7.01(g8.01(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) in the event that after the date of this Agreement and prior to the termination of this AgreementAgreement (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 7.01(f8.01(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 7.01(e8.01(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 and or the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(a8.02(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 $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 followingonly if: (i) in the event Buyer terminates 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 7.01(g)7.11; or (iii) (x) this Agreement is terminated as a result of Seller's failure or inability to 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) in the event that General Partner any Acquisition Proposal made after the date of this Agreement and the Letter of Intent but prior to the termination of this AgreementAgreement ("a NEW 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 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful 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 and 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 7.02(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 $1,600,000 (“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) in withdraw the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay Buyer motion for Bankruptcy Court approval of the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; Sale and (ii) subsequently liquidate or otherwise dispose of the Purchased Assets, in one or a series of transactions; or (d) the event that after Sellers withdraw the date motion for Bankruptcy Approval of this Agreement the Sale and prior to an Alternative Transaction is pursued. Until paid, the termination of this Agreement, Break-up Fee shall be allowed by the Bankruptcy Court as 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 administrative claim pursuant to Section 7.01(f503(b)(1)(A) (without of the Requisite Company Shareholder Approval having been obtainedBankruptcy Code with priority over any or all other administrative expenses in the Chapter 11 Cases of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy Code, or if this Agreement is terminated by Buyer pursuant the Chapter 11 Cases are converted to Section 7.01(e) as Chapter 7 cases. This provision shall be a result of willful 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 and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(a), all references incorporated in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”Bidding Procedures Order.