Expense Reimbursement and Break-Up Fee. (i) If this Agreement is terminated by Buyer or Sellers for any reason pursuant to Section 8.1, other than termination pursuant to Section 8.1(a) or Section 8.1(g), Sellers shall, upon the consummation of an Alternative Transaction, within five (5) Business Days after such termination of this Agreement, reimburse Buyer for all actual, documented and reasonable out of pocket costs, fees and expenses incurred by Buyer or its Affiliates, including reasonable fees, costs and expenses of any professionals (including financial advisors, outside legal counsel, accountants, experts and consultants) retained by Buyer or its Affiliates in connection with or related to the authorization, preparation, investigation, negotiation, execution and performance of this Agreement, including the Chapter 11 Cases and other judicial and regulatory proceedings related to the Agreement, up to an aggregate amount of $150,000 (such costs, fees and expenses, the “Expense Reimbursement”), such reimbursement to be made by wire transfer(s) in immediately available funds to one or more bank accounts of Buyer (or any of its Affiliates) designated in writing by Buyer to Seller.
Expense Reimbursement and Break-Up Fee. If Purchaser shall have elected not to proceed with the Additional Closing pursuant to Section 8.3(b) hereof, or if Purchaser or the Company shall have elected not to proceed with the Additional Closing pursuant to Section 8.3(c) hereof and no Competing Transaction shall have been proposed which has a value per share of Common Stock in excess of $5.75, the Company shall reimburse Purchaser for out-of-pocket expenses incurred by Purchaser in connection with the transactions contemplated hereby, including without limitation, all expenses incurred in connection with this Agreement, the negotiations leading to its execution, the due diligence investigations of the Company, the preparation and negotiation of any related agreements, and all fees and expenses incurred by Purchaser and its affiliates to investment bankers, accountants, attorneys and other representatives, provided that the Company shall not be obligated to reimburse Purchaser for more than $250,000 of such expenses in the aggregate. If (i) Purchaser shall have elected not to proceed with the Additional Closing pursuant to Section 8.3(a) hereof, (ii) Purchaser or the Company shall have elected not to proceed with the Additional Closing pursuant to Section 8.3(c) hereof and a bona fide definitive proposal with respect to a Competing Transaction shall have been presented to the Company and publicly announced prior to the vote of the Company's stockholders in accordance with Section 5.4.1, which has a value per share of Common Stock in excess of $5.75, or (iii) the Company shall have elected not to proceed with the Additional Closing pursuant to Section 8.3(d) hereof, then in the case of any of (i), (ii) or (iii) of this Section 4.11, the Company will pay $1,000,000 to Purchaser. In the event the immediately preceding sentence of this Section 4.11 is applicable, then the first sentence of this Section 4.11 will not be applicable.
Expense Reimbursement and Break-Up Fee. Upon consummation of a sale of all or substantially all of the Purchased Assets to any third party (or third parties) (other than Purchaser), or if any Seller commits a material breach of this Agreement or unilaterally abandons consummation of the transactions contemplated by this Agreement, Sellers shall pay to Purchaser cash or other immediately available funds in an amount equal to seven hundred and fifty thousand dollars ($750,000) (the “Expense Reimbursement”) and a break-up fee in the amount of one million dollar ($1,000,000) (the “Break-Up Fee”); provided, however, the Expense Reimbursement and the Break- Up Fee shall not be due and payable solely if this Agreement is terminated pursuant to Section 11.1(h). The provisions of this Section 7.5(a) shall survive any termination of this Agreement. Each of the Expense Reimbursement and the Break-Up Fee shall be paid to Purchaser directly from the proceeds of the closing of such sale(s) to any third party, and shall be paid to Purchaser prior to the payment of the proceeds of such sale to any third party asserting a Lien on the Purchased Assets (and no Lien of any third party shall attach to the portion of the sale proceeds representing the Expense Reimbursement or the Break-Up Fee). The obligation to pay the Expense Reimbursement and the Break- Up Fee under this Agreement shall be absolute and unconditional and shall not be subject to any defense, claim, counterclaim, offset, recoupment or reduction of any kind whatsoever.
Expense Reimbursement and Break-Up Fee. (a) Subject to approval of the Bankruptcy Court, Seller shall pay the Expense Reimbursement and Break-Up Fee to Purchaser or cause the Expense Reimbursement and Break-Up Fee to be paid to Purchaser, only if Seller shall consummate an Alternative Transaction.
Expense Reimbursement and Break-Up Fee. (a) In the event that (A) this Agreement is terminated (x) by the Purchaser pursuant to Sections 8.1(c)(i), (ii) or (iii), (y) by either Primary Party pursuant to Section 8.1(b)(i) (because of the failure of the condition specified in Section 7.1(d)) or (ii), or (z) by the Primary Seller Parties pursuant to Section 8.1(d)(iii); and (B) when this Agreement is terminated, the Purchaser is not in breach of this Agreement, which breach would result in a failure to satisfy any of the conditions to Closing set forth in Section 7.1 or Section 7.2, the Sellers shall pay to the Purchaser cash in an amount equal to the total amount of all actual fees, costs and expenses reasonably incurred by the Purchaser in connection with the preparation, execution and performance of this Agreement, which amount shall not exceed Four Million Dollars ($4,000,000) (the “Expense Reimbursement”). The Expense Reimbursement shall be paid by wire transfer of immediately available funds not more than five (5) Business Days following such termination and after the receipt by the NA Sellers of written notice from the Purchaser describing the fees and expenses that constitute the Expense Reimbursement in reasonable detail.
Expense Reimbursement and Break-Up Fee. (a) Following the entry of the Bidding Procedures Order:
Expense Reimbursement and Break-Up Fee. (a) Exodus hereby agrees, in the event that any Seller (i) accepts a Bid, other than that of the Buyer, as the highest or otherwise best offer (an "Auction Transaction") or (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 Sellers or their Affiliates or otherwise), all or a substantial portion of the Purchased Assets (or agrees to do any of the foregoing) in a transaction or series of transactions to a party or parties other than the Buyer or its Designees within six (6) months from the date hereof (any of clause (i) or (ii) being, an "Alternative Transaction"), to pay to Parent a break-up fee (the "Break-Up Fee") in the amount of $16,800,000 which reimburses Parent and the Buyer for their expenses incurred in connection with the transactions contemplated by this Agreement and compensates Parent and the Buyer for the time and expense dedicated to this transaction and the value added by Parent and the Buyer in (A) establishing a bid standard or minimum for other bidders, (B) placing the Sellers' estate property in a sales configuration mode attracting other bidders to the Auction and (C) for serving, by its name and its expressed interest, as a catalyst for other potential or actual bidders. The Break-Up Fee shall constitute an administrative priority claim against the Sellers' estates under Sections 503(b) and 507(a)(1) of the Bankruptcy Code and shall be paid immediately, without further order of the Bankruptcy Court, upon the entry by the Bankruptcy Court of an order approving an Alternative Transaction.
Expense Reimbursement and Break-Up Fee. (a) In the event that (i) this Agreement is terminated pursuant to Section 9.1(b)(ii), Section 9.1(b)(iii), Section 9.1(b)(iv), Section 9.1(b)(v)(pursuant to Clauses 15.4.2(B), 15.4.2(C), 15.4.2(E), 15.4.2(F), 15.4.2(G), 15.4.4(A), 15.4.4(B), 15.4.4(C), 15.4.4(D) and 15.4.4(E) of the EMEA Asset Sale Agreement), Section 9.1(b)(vi), Section 9.1(b)(vii)(by the Purchaser), Section 9.1(c)(ii), Section 9.1(d)(i), Section 9.1(d)(ii), Section 9.1(d)(iii) or Section 9.1(d)(iv), and (ii) other than with respect to termination pursuant to Section 9.1(b)(iii), Section 9.1(b)(v) (Pursuant to Clauses 15.4.2(C) and 15.4.2(D) of the EMEA Asset Sale Agreement) or Section 9.1(d)(iii), when this Agreement is terminated, the Purchaser is not in breach of this Agreement or the EMEA Asset Sale Agreement, which breach would result in a failure to satisfy any of the conditions to Closing set forth in Section 8.1 (other than (c) and (d) thereof in respect of a termination pursuant to Section 9.1(b)(ii) or 9.1(d)(iv)) or Section 8.2 of this Agreement, then the Sellers shall pay to the Purchaser a cash fee equal to the Seller Expense Reimbursement. Such amount shall be paid by wire transfer of immediately available funds to an account designated by the Purchaser and shall be paid after the termination of this Agreement within five (5) Business Days following receipt by the Main Sellers and NNUK of written notice from the Purchaser describing the fees and expenses that constitute the Expense Reimbursement in reasonable detail.
Expense Reimbursement and Break-Up Fee. In the event that, at the Auction, a Person presents a Competing Offer which constitutes a higher or better offer in accordance with the Sale Procedure Order and Seller subsequently consummates a sale of some or all of the Purchased Assets pursuant to a Competing Offer, Purchaser shall be entitled to payment of a fee in the amount of $250,000 (the “Expense Reimbursement and Break-Up Fee”) in respect of
Expense Reimbursement and Break-Up Fee. The last sentence of Section 6.4(a) shall be deleted and replaced with the following: "The Break-Up Fee shall constitute an administrative priority claim against the Sellers' estates under Sections 503(b) and 507(a)(1) of the Bankruptcy Code and shall be paid immediately, without further order of the Bankruptcy Court, upon the consummation of the first Alternative Transaction to occur following the date hereof."
