Common use of Certain Fees and Expenses Clause in Contracts

Certain Fees and Expenses. (a) Provided that the Fund is not in material breach of its obligations under this Agreement, if the Merger is not consummated for failure of the condition to Closing contained in Section 7.1(f) to be satisfied and, as a result of such failure, CNLRP is obligated to pay the Company a break-up fee pursuant to the terms of the CNLRP Merger Agreement, the Company shall pay to the Fund as follows: (i) if the Fund has waived the condition to Closing contained in Section 7.1(f) and elected to proceed with the Merger, the Company shall pay to the Fund an amount equal to $8,000,000, multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration; and (ii) if the Fund has not waived the condition to Closing contained in Section 7.1(f) and the Merger is not consummated, the Company shall pay to the Fund an amount equal to $5,000,000, multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration. (b) If this Agreement shall be terminated by the Fund pursuant to Section 8.1(k), the Fund thereupon shall pay to the Company an amount equal to the lesser of (i) 4.0% of the value of the Merger Consideration; and (ii) $20,000,000 multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration. (c) If this Agreement shall be terminated by the Company pursuant to Section 8.1(l), the Company shall pay to the Fund an amount equal to the lesser of (i) 4.0% of the value of the Merger Consideration; and (ii) $20,000,000 multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration. (d) If this Agreement shall be terminated by the Company pursuant to Section 8.1(n) or by the Fund or the Company on or after June 30, 2005, and as of the date of termination the Transaction Financing Commitment Letter has not been received by the Company, the Company shall pay to the Fund an amount equal to $3,000,000 multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration. (e) The payment of the amounts pursuant to this Section 8.4 shall be full compensation for the loss suffered by the Company or the Fund (as applicable) as a result of the failure of the Merger to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances. Any amount owed by the Company or the Fund pursuant to this Section 8.4 shall be paid by the Company to the Fund or the Fund to the Company (as applicable) in immediately available funds within two (2) business days after the date the event giving rise to the obligation to make such payment occurred. The Company and the Fund each acknowledge that the agreements contained in this Section 8.4 are integral parts of this Agreement; accordingly, if the Fund or the Company (as applicable) fails to promptly pay any amount owed pursuant to this Section 8.4 and, in order to obtain payment, the Fund or the Company (as applicable) commences a suit which results in a judgment against the other for any amounts owed pursuant to this Section 8.4, the losing party shall pay to the prevailing party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount owed at the prime rate of Bank of America, N.A. Payment of the fees described in this Section 8.4 shall not be in lieu of damages incurred in the event of breach of this Agreement.

Certain Fees and Expenses. (a) Provided that Except as otherwise specified in this Agreement or agreed in writing by the Fund is not parties, all out-of-pocket costs and expenses incurred in material breach of its obligations under connection with this AgreementAgreement and the transactions contemplated hereby (including, if the Merger is not consummated for failure of the condition to Closing contained in Section 7.1(f) to be satisfied andwithout limitation, as a result of such failure, CNLRP is obligated to pay the Company a break-up fee pursuant all expenses relating to the terms transfer of the CNLRP Merger Agreement, the Company shall pay to the Fund as follows: (iany hotel franchises) if the Fund has waived the condition to Closing contained in Section 7.1(f) and elected to proceed with the Merger, the Company shall pay to the Fund an amount equal to $8,000,000, multiplied by a fraction, the numerator of which shall be paid by the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration; and (ii) if the Fund has not waived the condition to Closing contained in Section 7.1(f) and the Merger is not consummated, the Company shall pay to the Fund an amount equal to $5,000,000, multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Considerationparty incurring such cost or expense. (b) If AGH agrees that if this Agreement shall be terminated by the Fund pursuant to Section 8.1(k9.1(c), (g), (i) or (k) and, in the Fund thereupon case of (c) or (g), following the date of this Agreement and prior to termination of this Agreement, AGH shall have received a AGH Acquisition Proposal and within six months following termination of this Agreement, AGH shall enter into a definitive agreement providing for a AGH Acquisition Proposal, then AGH will pay to the Company as directed by CapStar a fee in an amount equal to the lesser Break-Up Fee. Notwithstanding the foregoing, in the event of (i) 4.0% of the value of the Merger Consideration; and (ii) $20,000,000 multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration. (c) If this Agreement shall be terminated by the Company termination pursuant to Section 8.1(l9.1(c) or 9.1(g), the Company AGH shall immediately pay to the Fund as directed by CapStar an amount equal to the lesser Break-Up Expenses, which amount shall be credited against any Break-Up Fee that may ultimately become payable pursuant to the preceding sentence. Payment of (i) 4.0% any of such amounts shall be made, as directed by CapStar, by wire transfer of immediately available funds immediately upon this occurrence of the value event giving rise to payment of the Merger Consideration; and (ii) $20,000,000 multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration. (d) If this Agreement shall be terminated by the Company pursuant to Section 8.1(n) such fee or by the Fund or the Company on or after June 30, 2005, and as of the date of termination the Transaction Financing Commitment Letter has not been received by the Company, the Company shall pay to the Fund an amount equal to $3,000,000 multiplied by a fraction, the numerator of which shall be the value of the Merger Consideration and the denominator of which shall be the value of the Aggregate Merger Consideration. (e) expenses. The payment of the amounts pursuant to this Section 8.4 Breakup Fee shall be full compensation for the loss suffered by CapStar as the Company or the Fund (as applicable) as a result of the failure of the Merger to be consummated (including, without limitation, opportunity costs and out-of-pocket costs and expenses) and to avoid the difficulty of determining damages under the circumstances. Any amount owed by circumstances and neither party shall have any other liability to the Company or other, other than the Fund payment of the Breakup Fee. (c) CapStar agrees that if this Agreement shall be terminated pursuant to Section 9.1(b), (f), (h) or (j) and, in the case of (b) or (f), following the date of this Agreement and prior to the termination of this Agreement, CapStar shall have received a CapStar Acquisition Proposal and within six months following termination of this Agreement, CapStar shall enter into a definitive agreement providing for a CapStar Acquisition Proposal, then CapStar will pay as directed by AGH a fee in an amount equal to the Break-Up Fee. Notwithstanding the foregoing, in the event of a termination pursuant to Section 8.4 9.1(b) or 9.1(f), then CapStar will pay, as directed by AGH, an amount equal to the Break-Up Expenses, which amount shall be paid by the Company credited against any Break-Up Fee that may ultimately become payable pursuant to the Fund or the Fund to the Company (preceding sentence. Payment of any of such amounts shall be made, as applicable) in directed by AGH, by wire transfer of immediately available funds within two (2) business days after the date immediately upon this occurrence of the event giving rise to the obligation to make payment of such payment occurredfee or expenses. The Company payment of the Breakup Fee shall be compensation for the loss suffered by AGH as the result of the failure of the Merger to be consummated and to avoid the Fund each acknowledge that difficulty of determining damages under the agreements contained circumstances and neither party shall have any other liability to the other, other than the payment of the Breakup Fee. As used in this Section 8.4 are integral parts Agreement, "BREAK-UP FEE" shall be an amount equal to $35,000,000 plus Break-Up Expenses (the "BASE AMOUNT"); provided, however, that in the case of this Agreement; accordinglya Break-Up Fee payable to AGH, such fee shall not exceed the sum of (A) the maximum amount that can be paid to AGH without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the Fund or the Company (as applicablepayment of such amount did not constitute income described in Sections 856(c)(2)(A)-(H) fails to promptly pay any amount owed pursuant to this Section 8.4 and, in order to obtain payment, the Fund or the Company (as applicableand 856(c)(3)(A)-(I) commences a suit which results in a judgment against the other for any amounts owed pursuant to this Section 8.4, the losing party shall pay to the prevailing party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount owed at the prime rate of Bank of America, N.A. Payment of the fees described in this Section 8.4 shall not be in lieu of damages incurred Code ("QUALIFYING INCOME"), as determined by independent accountants to AGH, and (B) in the event of breach of this Agreement.AGH receives a letter from outside counsel (the "BREAK-UP FEE TAX OPINION") indicating that AGH