Common use of Break-Up Fees and Expenses Clause in Contracts

Break-Up Fees and Expenses. (a) Except as otherwise specified in this Section 7.2 or agreed in writing by the parties, all out-of-pocket costs and expenses incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby shall be paid by the party incurring such cost or expense, except that out-of-pocket costs and expenses incurred in connection with printing and mailing the Proxy Statement/Prospectus and the Registration Statement shall be borne equally by Parent and the Company. (b) The Company and the Operating Partnership agree with the Purchaser Parties that: (i) (A) if Parent shall terminate this Agreement pursuant to Section 7.1(d) (Breach by the Company or the Operating Partnership) other than because of a material breach of Section 5.2 (Preparation of Proxy Statement and Registration Statement; Stockholders’ Meeting) or Section 5.3 (No Solicitation of Transactions), then the Company will pay to Parent, or as directed by Parent, 50% of the Break-Up Fee plus the Expenses on the Business Day immediately following such termination; and (B) if Parent shall terminate this Agreement pursuant to Section 7.1(d) (Breach by the Company or the Operating Partnership) because of a material breach of Section 5.2 (Preparation of Proxy Statement and Registration Statement; Stockholders’ Meeting) or Section 5.3 (No Solicitation of Transactions), then the Company will pay to Parent, or as directed by Parent, the BreakUp Fee plus the Expenses on the Business Day immediately following such termination; (ii) if Parent shall terminate this Agreement pursuant to Section 7.1(h) (Change of Recommendation), then the Company will pay to Parent, or as directed by Parent, the Break-Up Fee plus the Expenses on the Business Day immediately following such termination; (iii) if the Company shall terminate this Agreement pursuant to Section 7.1(i) (Superior Competing Transaction), then the Company will pay to Parent, or as directed by Parent, the Break-Up Fee plus the Expenses prior to or simultaneously with such termination; (iv) if either the Company or Parent shall terminate this Agreement pursuant to Section 7.1(b) (Termination Date) prior to the Company Stockholder Meeting being held or Section 7.1(g) (No Company Stockholder Approval), then the Company shall on the date of such termination pay to Parent, or as directed by Parent, an amount equal to the Expenses and, in addition, if (A) after the date hereof and prior to such termination, a Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) or any Representative of such Person or group on behalf of such Person or group has made or amended or modified any bona fide offer or proposal (including by way of press release) relating to a Competing Transaction, which offer or proposal has been publicly announced prior to the Company Stockholder Meeting and (B) within eighteen months from the date of such termination, the Company shall consummate a Competing Transaction with such Person or any other Person, then the Company shall pay to Parent, or as directed by Parent, promptly after consummating such Competing Transaction, an amount equal to the Break-Up Fee; and (v) if this Agreement is terminated for any other reason (other than by the Company pursuant to Section 7.1(c) (Breach by Purchaser Party)), then the Company will pay to Parent, or as directed by Parent, the Expenses on the date of such termination. (c) For purposes of this Agreement, the “Break-Up Fee” shall be an amount equal to (i) if this Agreement is terminated on or prior to March 1, 2007, $40,000,000 (forty million dollars), (ii) if this Agreement is terminated after March 1, 2007 and on or prior to April 15, 2007, $65,000,000 (sixty-five million dollars), (iii) if this Agreement is terminated after April 15, 2007 and on or prior to July 1, 2007, $95,000,000 (ninety-five million dollars) and (iv) if this Agreement is terminated after July 1, 2007, $125,000,000 (one hundred and twenty-five million dollars). Payment of the Break-Up Fee shall be made, as directed by Parent, by wire transfer of immediately available funds. In no event shall the Company be obligated to pay any amount under this Section 7.2 in excess of the sum of the Break-Up Fee applicable on the date of termination of this Agreement and Expenses. (d) For purposes of this Agreement, the “Expenses” shall be the cash amount necessary to fully reimburse Parent, Holdings, Purchaser Sub, Purchaser LP and their affiliates for all out-of-pocket fees and expenses incurred (whether or not billed) at any time (whether before or after the date hereof) prior to the termination of this Agreement by any of them or on their behalf in connection with the Merger, the Partnership Merger, the preparation of this Agreement, their due diligence investigation of the Company and the Operating Partnership and the transactions contemplated by this Agreement (including any currency or interest rate hedging activities in connection with the transactions contemplated hereby), including (x) all fees and expenses of counsel, investment banking firms or financial advisors (and their respective counsel and Representatives), accountants, experts and consultants to Parent, Purchaser, Purchaser LP or any of their affiliates in connection with the Merger, the preparation of this Agreement, their due diligence investigation of the Company and the Operating Partnership and the transactions contemplated by this Agreement and (y) all fees and expenses payable to banks, investment banking firms and other financial institutions (and their respective counsel and Representatives) in connection with arranging or providing financing for the Merger Consideration, the repayment of the Goxxxxx Xachs Loan, the refinancing of any properties or assets of the Company or the Operating Partnership or any of the other transactions contemplated by this Agreement (the fees and expenses contemplated by this paragraph (d) being called, collectively, the “Expenses”); provided, however, that the aggregate amount of the Expenses to be paid by the Company under this Section 7.2 shall not exceed $25,000,000 (twenty-five million dollars). (e) The Company acknowledges that the agreements contained in paragraphs (b), (c) and (d) of this Section 7.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent, Purchaser Sub and Purchaser LP would not enter into this Agreement; accordingly, if the Company fails timely to pay any amount due pursuant to this Section 7.2, then the Company shall pay to Parent, Purchaser Sub and Purchaser LP all such amounts, together with interest on the amount of the fee at the prime or base rate of Citibank, N.A. from the date such payment was due under this Agreement through the date of payment, and, if, in order to obtain such payment, Parent, Purchaser Sub and Purchaser LP commence a suit that results in a judgment against the Company for any such amount, then the Company shall pay to Par- ent, Purchaser Sub and Purchaser LP their costs and expenses (including attorneys’ fees) in connection with such suit.

Break-Up Fees and Expenses. (a) Except as otherwise specified in this Section 7.2 or agreed in writing by the parties, all out-of-pocket costs and expenses incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby shall be paid by the party incurring such cost or expense, except that out-of-pocket costs and expenses incurred in connection with printing and mailing the Proxy Statement/Prospectus Offer Documents, the Schedule 14D-9 and the Registration Proxy Statement shall be borne equally by Parent and the Company. (b) The Company and the Operating Partnership agree with the Purchaser Parties that: (i) (A) if Parent shall terminate this Agreement pursuant to Section 7.1(d) (Breach by the Company or the Operating Partnership) other than because of a material breach of any of Section 1.2 (Company Actions; Stockholders’ Meeting) or Section 5.3 (No Solicitation of Transactions) or, in the case of a One-Step Merger, Section 5.2 (Preparation of Proxy Statement and Registration Statement; Stockholders’ Meeting) or Section 5.3 (No Solicitation of Transactions), then the Company will pay to Parent, or as directed by Parent, 50% of the Break-Up Fee plus the Expenses on the Business Day immediately following such termination; and (B) if Parent shall terminate this Agreement pursuant to Section 7.1(d) (Breach by the Company or the Operating Partnership) because of a material breach of any of Section 1.2 (Company Actions; Stockholders’ Meeting) or Section 5.3 (No Solicitation of Transactions) or, in the case of a One-Step Merger, Section 5.2 (Preparation of Proxy Statement and Registration Statement; Stockholders’ Meeting) or Section 5.3 (No Solicitation of Transactions), then the Company will pay to Parent, or as directed by Parent, the BreakUp Break-Up Fee plus the Expenses on the Business Day immediately following such termination; (ii) if Parent shall terminate this Agreement pursuant to Section 7.1(h) (Change of Recommendation), then the Company will pay to Parent, or as directed by Parent, the Break-Up Fee plus the Expenses on the Business Day immediately following such termination; (iii) if the Company shall terminate this Agreement pursuant to Section 7.1(i) (Superior Competing Transaction), then the Company will pay to Parent, or as directed by Parent, the Break-Up Fee plus the Expenses prior to or simultaneously with such termination; (iv) if either the Company or Parent shall terminate this Agreement pursuant to Section 7.1(b) (Termination Date) prior to the Company Stockholder Meeting being held or Section 7.1(g) (No Company Stockholder Approval), then the Company shall on the date of such termination pay to Parent, or as directed by Parent, an amount equal to the Expenses and, in addition, if (A) after the date hereof and prior to such termination, a Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) or any Representative of such Person or group on behalf of such Person or group has made or amended or modified any bona fide offer or proposal (including by way of press release) relating to a Competing Transaction, which offer or proposal has been publicly announced prior to the Company Stockholder Meeting and (B) within eighteen months from the date of such termination, the Company shall consummate a Competing Transaction with such Person or any other Person, then the Company shall pay to Parent, or as directed by Parent, promptly after consummating such Competing Transaction, an amount equal to the Break-Up Fee; and (v) if this Agreement is terminated for any other reason (other than by the Company pursuant to Section 7.1(c) (Breach by Purchaser Party)), then the Company will pay to Parent, or as directed by Parent, the Expenses on the date of such termination. (c) For purposes of this Agreement, the “Break-Up Fee” shall be an amount equal to $50,000,000 (i) if this Agreement is terminated on or prior to March 1, 2007, $40,000,000 (forty million dollars), (ii) if this Agreement is terminated after March 1, 2007 and on or prior to April 15, 2007, $65,000,000 (sixty-five million dollars), (iii) if this Agreement is terminated after April 15, 2007 and on or prior to July 1, 2007, $95,000,000 (ninety-five million dollars) and (iv) if this Agreement is terminated after July 1, 2007, $125,000,000 (one hundred and twenty-five fifty million dollars). Payment of the Break-Up Fee shall be made, as directed by Parent, by wire transfer of immediately available funds. In no event shall the Company be obligated to pay any amount under this Section 7.2 in excess of the sum of the Break-Up Fee applicable on the date of termination of this Agreement and Expenses. (d) For purposes of this Agreement, the “Expenses” shall be the cash amount necessary to fully reimburse Parent, Holdings, Purchaser Sub, Purchaser LP and their affiliates Affiliates (including each of SPG and Farallon and their respective Affiliates) for all out-of-pocket fees and expenses incurred (whether or not billed) at any time (whether before or after the date hereof) prior to the termination of this Agreement by any of them or on their behalf in connection with the Merger, the Partnership Merger, the preparation of this Agreement, their due diligence investigation of the Company and the Operating Partnership and the transactions contemplated by this Agreement (including any currency or interest rate hedging activities in connection with the transactions contemplated hereby), including (xi) all fees and expenses of counsel, investment banking firms or financial advisors (and their respective counsel and Representatives), accountants, experts and consultants to Parent, Purchaser, Purchaser LP or any of their affiliates Affiliates in connection with the Merger, the preparation of this Agreement, their due diligence investigation of the Company and the Operating Partnership and the transactions contemplated by this Agreement and (yii) all fees and expenses payable to banks, investment banking firms and other financial institutions (and their respective counsel and Representatives) in connection with arranging or providing financing for the Merger Consideration, the repayment of the Goxxxxx Xachs Brookfield Loan, the refinancing of any properties or assets of the Company or the Operating Partnership or any of the other transactions contemplated by this Agreement (the fees and expenses contemplated by this paragraph (d) being called, collectively, the “Expenses”)Agreement; provided, however, that the aggregate amount of the Expenses to be paid by the Company under this Section 7.2 shall not exceed $25,000,000 (twenty-five million dollars). (e) The Company acknowledges that the agreements contained in paragraphs (b), (c) and (d) of this Section 7.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent, Purchaser Sub and Purchaser LP would not enter into this Agreement; accordingly, if the Company fails timely to pay any amount due pursuant to this Section 7.2, then the Company shall pay to Parent, Purchaser Sub and Purchaser LP all such amounts, together with interest on the amount of the fee at the prime or base rate of Citibank, N.A. from the date such payment was due under this Agreement through the date of payment, and, if, in order to obtain such payment, Parent, Purchaser Sub and Purchaser LP commence a suit that results in a judgment against the Company for any such amount, then the Company shall pay to Par- entParent, Purchaser Sub and Purchaser LP their costs and expenses (including attorneys’ fees) in connection with such suit.

Break-Up Fees and Expenses. (a) Each Party Bears Its Own Expenses. Except as otherwise specified in this Section 7.2 or agreed in writing by the parties, all out-of-pocket costs and expenses incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby and by this Agreement shall be paid by the party incurring such cost or expense, except that out-of-pocket costs and expenses incurred in connection with printing and mailing the Proxy Statement/Prospectus and the Registration Statement shall be borne equally by Parent and the Company. (b) The Company and the Operating Partnership agree with the Purchaser Parties that: (i) (A) Break Up Fee. Parent agrees that if Parent shall terminate this Agreement shall be terminated pursuant to Section 7.1(d) (Breach by the Company or the Operating Partnership) other than because of a material breach of Section 5.2 (Preparation of Proxy Statement and Registration Statement; Stockholders’ Meeting7.1(g) or Section 5.3 (No Solicitation of Transactions7.1(h)(i), then the Company Parent will pay to ParentClearday, or as directed by Parent, 50% of the Break-Up Fee plus the Expenses on the Business Day immediately following such termination; and (B) if Parent shall terminate this Agreement pursuant to Section 7.1(d) (Breach by the Company or the Operating Partnership) because of a material breach of Section 5.2 (Preparation of Proxy Statement and Registration Statement; Stockholders’ Meeting) or Section 5.3 (No Solicitation of Transactions), then the Company will pay to Parent, or as directed by Parent, the BreakUp Fee plus the Expenses on the Business Day immediately following such termination; (ii) if Parent shall terminate this Agreement pursuant to Section 7.1(h) (Change of Recommendation), then the Company will pay to Parent, or as directed by Parent, the Break-Up Fee plus the Expenses on the Business Day immediately following such termination; (iii) if the Company shall terminate this Agreement pursuant to Section 7.1(i) (Superior Competing Transaction), then the Company will pay to Parent, or as directed by Parent, the Break-Up Fee plus the Expenses prior to or simultaneously with such termination; (iv) if either the Company or Parent shall terminate this Agreement pursuant to Section 7.1(b) (Termination Date) prior to the Company Stockholder Meeting being held or Section 7.1(g) (No Company Stockholder Approval), then the Company shall on the date of such termination pay to Parent, or as directed by ParentClearday, an amount equal to the Expenses andBreak-Up Fee; provided, that, in additioneither case, the applicable amount shall be paid promptly, but in no event later than five (5) Business Days after such termination. Parent also agrees that if this Agreement is terminated pursuant to Section 7.1(f)(i) and (Ai) after the date hereof and prior to such termination, a Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) or any Representative representative of such Person or group on behalf of such Person or group Person) has made or amended or modified any bona fide offer or written proposal (including by way of press release) relating to a Competing Transaction, Transaction which offer or proposal has been publicly announced prior to the Company Parent Stockholder Meeting and (Bii) within eighteen twelve months from the date of any such termination, the Company termination Parent or any Subsidiary of Parent shall consummate a Competing Transaction, or enter into a written agreement with respect to a Competing Transaction that is ultimately consummated, with such Person or any other Person, then the Company Parent shall pay to ParentClearday, or as directed by ParentClearday, promptly after consummating such Competing TransactionTransaction (but in no event later than five (5) Business Days following such consummation), an amount equal to the Break-Up Fee; and (v) if this Agreement is terminated for any other reason (other than by the Company pursuant to Section 7.1(c) (Breach by Purchaser Party)), then the Company will pay to Parent, or as directed by Parent, the Expenses on the date of such termination. (c) For purposes of this Agreement, the “Break-Up Fee” shall be an amount equal to (i) if this Agreement is terminated on or prior to March 1, 2007, $40,000,000 (forty million dollars), (ii) if this Agreement is terminated after March 1, 2007 and on or prior to April 15, 2007, $65,000,000 (sixty-five million dollars), (iii) if this Agreement is terminated after April 15, 2007 and on or prior to July 1, 2007, $95,000,000 (ninety-five million dollars) and (iv) if this Agreement is terminated after July 1, 2007, $125,000,000 (one hundred and twenty-five million dollars). Payment of the Break-Up Fee any of such amounts shall be made, as directed by ParentClearday, by wire transfer of immediately available funds. In . (c) Clearday agrees that if this Agreement shall be terminated (i) pursuant to Section 7.1(h)(ii), then Clearday will pay to Parent an amount equal to $800,000 less the amount of the Operating Payments that have been paid by Clearday on the date of such termination; provided, in no event shall the Company be obligated to pay will Parent owe Clearday any amount under this Section 7.2 in excess sentence, regardless of the sum amount of Operating Payments made; or (ii) pursuant to Section 7.1(f)(ii), then Clearday will pay to Parent an amount equal to $300,000 less the amount of the Break-Up Fee applicable Operating Payments that have been paid by Clearday on the date of termination of this Agreement and Expenses. (d) For purposes of this Agreement, the “Expenses” shall be the cash amount necessary to fully reimburse Parent, Holdings, Purchaser Sub, Purchaser LP and their affiliates for all out-of-pocket fees and expenses incurred (whether or not billed) at any time (whether before or after the date hereof) prior to the termination of this Agreement by any of them or on their behalf in connection with the Merger, the Partnership Merger, the preparation of this Agreement, their due diligence investigation of the Company and the Operating Partnership and the transactions contemplated by this Agreement (including any currency or interest rate hedging activities in connection with the transactions contemplated hereby), including (x) all fees and expenses of counsel, investment banking firms or financial advisors (and their respective counsel and Representatives), accountants, experts and consultants to Parent, Purchaser, Purchaser LP or any of their affiliates in connection with the Merger, the preparation of this Agreement, their due diligence investigation of the Company and the Operating Partnership and the transactions contemplated by this Agreement and (y) all fees and expenses payable to banks, investment banking firms and other financial institutions (and their respective counsel and Representatives) in connection with arranging or providing financing for the Merger Consideration, the repayment of the Goxxxxx Xachs Loan, the refinancing of any properties or assets of the Company or the Operating Partnership or any of the other transactions contemplated by this Agreement (the fees and expenses contemplated by this paragraph (d) being called, collectively, the “Expenses”)such termination; provided, however, that the aggregate in no event will Parent owe Clearday any amount of the Expenses to be paid by the Company under this Section 7.2 shall not exceed $25,000,000 (twenty-five million dollars). (e) The Company acknowledges that the agreements contained in paragraphs (b)sentence, (c) and (d) regardless of this Section 7.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent, Purchaser Sub and Purchaser LP would not enter into this Agreement; accordingly, if the Company fails timely to pay any amount due pursuant to this Section 7.2, then the Company shall pay to Parent, Purchaser Sub and Purchaser LP all such amounts, together with interest on the amount of the fee at the prime or base rate of Citibank, N.A. from the date such payment was due under this Agreement through the date of payment, and, if, in order to obtain such payment, Parent, Purchaser Sub and Purchaser LP commence a suit that results in a judgment against the Company for any such amount, then the Company shall pay to Par- ent, Purchaser Sub and Purchaser LP their costs and expenses (including attorneys’ fees) in connection with such suitOperating Payments made.

Break-Up Fees and Expenses. (a) Each Party Bears Its Own Expenses. Except as otherwise specified in this Section 7.2 or agreed in writing by the parties, all out-of-pocket costs and expenses incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby and by this Agreement shall be paid by the party incurring such cost or expense; provided, except that out-of-Clearday shall reimburse, as incurred, up to $175,000 of Parent’s reasonable, documented, out of pocket costs legal and accounting expenses incurred by Parent in connection with printing the preparation, filing and mailing clearing of SEC comments with respect to the Merger Proxy and Registration Statement/Prospectus and the Registration Statement shall be borne equally by Parent and the Company. (b) The Company and the Operating Partnership agree with the Purchaser Parties that: (i) (A) Break Up Fee. Parent agrees that if Parent shall terminate this Agreement shall be terminated pursuant to Section 7.1(d) (Breach by the Company or the Operating Partnership) other than because of a material breach of Section 5.2 (Preparation of Proxy Statement and Registration Statement; Stockholders’ Meeting7.1(g) or Section 5.3 (No Solicitation of Transactions7.1(h)(i), then the Company Parent will pay to ParentClearday, or as directed by ParentClearday, 50% of an amount equal to the Break-Up Fee plus Fee; provided, that, in either case, the Expenses on the applicable amount shall be paid promptly, but in no event later than five (5) Business Day immediately following Days after such termination; and (B) . Parent also agrees that if Parent shall terminate this Agreement is terminated pursuant to Section 7.1(d7.1(f)(i) and (Breach by i) after the Company date hereof and prior to such termination, a Person (or any representative of such Person) has made any bona fide written proposal relating to a Competing Transaction which has been publicly announced prior to the Operating PartnershipParent Stockholder Meeting and (ii) because within twelve months of any such termination Parent or any Subsidiary of Parent shall consummate a material breach of Section 5.2 (Preparation of Proxy Statement and Registration Statement; Stockholders’ Meeting) Competing Transaction, or Section 5.3 (No Solicitation of Transactions)enter into a written agreement with respect to a Competing Transaction that is ultimately consummated, with any Person, then the Company will Parent shall pay to ParentClearday, or as directed by ParentClearday, the BreakUp Fee plus the Expenses on the promptly after consummating such Competing Transaction (but in no event later than five (5) Business Day immediately Days following such termination; (ii) if Parent shall terminate this Agreement pursuant to Section 7.1(h) (Change of Recommendationconsummation), then the Company will pay an amount equal to Parent, or as directed by Parent, the Break-Up Fee plus the Expenses on the Business Day Fee. Payment of any of such amounts shall be made, as directed by Clearday, by wire transfer of immediately following such termination; (iii) available funds. Clearday agrees that if the Company shall terminate this Agreement shall be terminated pursuant to Section 7.1(i) (Superior Competing Transaction7.1(h)(ii), then the Company Clearday will pay to Parent, or as directed by Parent, the Break-Up Fee plus the Expenses prior to or simultaneously with such termination; (iv) if either the Company or Parent shall terminate this Agreement pursuant to Section 7.1(b) (Termination Date) prior to the Company Stockholder Meeting being held or Section 7.1(g) (No Company Stockholder Approval), then the Company shall on the date of such termination pay to Parent, or as directed by Parent, an amount equal to the Expenses andClearday Break-Up Fee; provided, that, such amount shall be paid promptly, but in addition, if no event later than five (A5) Business Days after the date hereof and prior to such termination, a Person or “group” (within the meaning of . Clearday also agrees that if this Agreement is terminated pursuant to Section 13(d)(3) of the Exchange Act) or any Representative of such Person or group on behalf of such Person or group has made or amended or modified any bona fide offer or proposal (including by way of press release) relating to a Competing Transaction, which offer or proposal has been publicly announced prior to the Company Stockholder Meeting and (B) within eighteen months from the date of such termination, the Company shall consummate a Competing Transaction with such Person or any other Person7.1(f)(ii), then the Company Clearday shall pay to Parent, or as directed by Parent, promptly after consummating (but in no event later than five (5) Business Days following such Competing Transactionfailure to obtain the Clearday Stockholder Approval), an amount equal to the Clearday Break-Up Fee; and (v) if this Agreement is terminated for any other reason (other than by the Company pursuant to Section 7.1(c) (Breach by Purchaser Party)), then the Company will pay to Parent, or as directed by Parent, the Expenses on the date of such termination. (c) For purposes of this Agreement, the “Break-Up Fee” shall be an amount equal to (i) if this Agreement is terminated on or prior to March 1, 2007, $40,000,000 (forty million dollars), (ii) if this Agreement is terminated after March 1, 2007 and on or prior to April 15, 2007, $65,000,000 (sixty-five million dollars), (iii) if this Agreement is terminated after April 15, 2007 and on or prior to July 1, 2007, $95,000,000 (ninety-five million dollars) and (iv) if this Agreement is terminated after July 1, 2007, $125,000,000 (one hundred and twenty-five million dollars). Payment of the Break-Up Fee any of such amounts shall be made, as directed by Parent, by wire transfer of immediately available funds. In no event shall the Company be obligated to pay any amount under this Section 7.2 in excess of the sum of the Break-Up Fee applicable on the date of termination of this Agreement and Expenses. (d) For purposes of this Agreement, the “Expenses” shall be the cash amount necessary to fully reimburse Parent, Holdings, Purchaser Sub, Purchaser LP and their affiliates for all out-of-pocket fees and expenses incurred (whether or not billed) at any time (whether before or after the date hereof) prior to the termination of this Agreement by any of them or on their behalf in connection with the Merger, the Partnership Merger, the preparation of this Agreement, their due diligence investigation of the Company and the Operating Partnership and the transactions contemplated by this Agreement (including any currency or interest rate hedging activities in connection with the transactions contemplated hereby), including (x) all fees and expenses of counsel, investment banking firms or financial advisors (and their respective counsel and Representatives), accountants, experts and consultants to Parent, Purchaser, Purchaser LP or any of their affiliates in connection with the Merger, the preparation of this Agreement, their due diligence investigation of the Company and the Operating Partnership and the transactions contemplated by this Agreement and (y) all fees and expenses payable to banks, investment banking firms and other financial institutions (and their respective counsel and Representatives) in connection with arranging or providing financing for the Merger Consideration, the repayment of the Goxxxxx Xachs Loan, the refinancing of any properties or assets of the Company or the Operating Partnership or any of the other transactions contemplated by this Agreement (the fees and expenses contemplated by this paragraph (d) being called, collectively, the “Expenses”); provided, however, that the aggregate amount of the Expenses to be paid by the Company under this Section 7.2 shall not exceed $25,000,000 (twenty-five million dollars). (e) The Company acknowledges that the agreements contained in paragraphs (b), (c) and (d) of this Section 7.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent, Purchaser Sub and Purchaser LP would not enter into this Agreement; accordingly, if the Company fails timely to pay any amount due pursuant to this Section 7.2, then the Company shall pay to Parent, Purchaser Sub and Purchaser LP all such amounts, together with interest on the amount of the fee at the prime or base rate of Citibank, N.A. from the date such payment was due under this Agreement through the date of payment, and, if, in order to obtain such payment, Parent, Purchaser Sub and Purchaser LP commence a suit that results in a judgment against the Company for any such amount, then the Company shall pay to Par- ent, Purchaser Sub and Purchaser LP their costs and expenses (including attorneys’ fees) in connection with such suit.