Common use of Expense Reimbursement and Break-Up Fee Clause in Contracts

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. (ii) If this Agreement is terminated by Buyer or Sellers pursuant to Section 8.1(b)(ii), Section 8.1(c), Section 8.1(d), or Section 8.1(f); provided that for a termination pursuant to Section 8.1(f), the failure to close by the Outside Date was not a result of Buyer failing to fulfill, in any material respect, its obligations under this Agreement, in addition to the Expense Reimbursement which shall be payable as provided in Section 6.7(b)(i), pay to Buyer the Break-Up Fee, such payment of the Break-Up Fee to be made only, however, on the consummation of an Alternative Transaction 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 Sellers out of the proceeds of such Alternative Transaction or otherwise satisfied pursuant to the terms of such Alternative Transaction or an order of the Bankruptcy Court approving such Alternative Transaction. (iii) The Parties acknowledge and agree that (A) the Parties have expressly negotiated the provisions of this Section 6.7(b) and the payment of the Break-Up Fee and the Expense Reimbursement are integral parts of this Agreement, (B) in the absence of Sellers’ obligations to make these payments, Buyer would not have entered into this Agreement, and (C) the Break-Up Fee and the Expense Reimbursement shall constitute allowed administrative expense claims pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code. Except in the case of Fraud by the Sellers (or any of them), Buyer’s rights to the Break-Up Fee and/or the Expense Reimbursement, as applicable, pursuant to this Section 6.7(b) and subject to Section 3.3(a)(iii) and Section 9.11(c), shall be the sole and exclusive remedy of Buyer against Sellers and any of its Affiliates for any Liability, damage or other loss resulting from, the termination of this Agreement, breach of any representation, warranty covenant or agreement contained herein or the failure of the transactions contemplated hereby to be consummated, and none of Buyer nor any of its Affiliates shall have any other remedy or cause of action under or relating to this Agreement or any applicable Law. (iv) The obligations of Sellers to pay the Break-Up Fee and/or the Expense Reimbursement shall survive the termination of this Agreement in accordance with Section 8.2. The Break-Up Fee and/or the Expense Reimbursement shall be deemed earned upon entry of the Bidding Procedures Order.

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. (ii) If this Agreement is terminated by Buyer or Sellers pursuant to Section 8.1(b)(ii), Section 8.1(c), Section 8.1(d), or Section 8.1(f); provided that for a termination pursuant to Section 8.1(f), the failure to close by the Outside Date was not a result of Buyer failing to fulfill, in any material respect, its obligations under this Agreement, in addition to the Expense Reimbursement which shall be payable as provided in Section 6.7(b)(i), pay to Buyer the Break-Up Fee, such payment of the Break-Up Fee to be made only, however, on the consummation of an Alternative Transaction 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 Sellers out of the proceeds of such Alternative Transaction or otherwise satisfied pursuant to the terms of such Alternative Transaction or an order of the Bankruptcy Court approving such Alternative Transaction. (iii) The Parties acknowledge and agree that (A) the Parties have expressly negotiated the provisions of this Section 6.7(b) and the payment of the Break-Up Fee and the Expense Reimbursement are integral parts of this Agreement, (B) in the absence of Sellers’ obligations to make these payments, Buyer would not have entered into this Agreement, and (C) the Break-Up Fee and the Expense Reimbursement shall constitute allowed administrative expense claims pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code. Except in the case of Fraud by the Sellers (or any of them), Buyer’s rights to the Break-Up Fee and/or the Expense Reimbursement, as applicable, pursuant to this Section 6.7(b) and subject to Section 3.3(a)(iii) and Section 9.11(c9.10(c), shall be the sole and exclusive remedy of Buyer against Sellers and any of its Affiliates for any Liability, damage or other loss resulting from, the termination of this Agreement, breach of any representation, warranty covenant or agreement contained herein or the failure of the transactions contemplated hereby to be consummated, and none of Buyer nor any of its Affiliates shall have any other remedy or cause of action under or relating to this Agreement or any applicable Law. (iv) The obligations of Sellers to pay the Break-Up Fee and/or the Expense Reimbursement shall survive the termination of this Agreement in accordance with Section 8.2. The Break-Up Fee and/or the Expense Reimbursement shall be deemed earned upon entry of the Bidding Procedures Order.

Expense Reimbursement and Break-Up Fee. (a) Exodus hereby agrees, in the event that any Seller (i) If this Agreement is terminated by Buyer or Sellers for any reason pursuant to Section 8.1accepts a Bid, other than termination pursuant to Section 8.1(athat of the Buyer, as the highest or otherwise best offer (an "Auction Transaction") or Section 8.1(g(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), Sellers shall, upon all or a substantial portion of the consummation Purchased Assets (or agrees to do any of an Alternative Transaction, within five (5the foregoing) Business Days after such termination in a transaction or series of this Agreement, reimburse Buyer for all actual, documented and reasonable out of pocket costs, fees and expenses incurred by transactions to a party or parties other than the Buyer or its Affiliates, including reasonable fees, costs and expenses of any professionals Designees within six (including financial advisors, outside legal counsel, accountants, experts and consultants6) retained by Buyer or its Affiliates in connection with or related to months from 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 date hereof (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 Affiliatesclause (i) designated in writing by Buyer to Seller. or (ii) If this Agreement is terminated by Buyer or Sellers pursuant to Section 8.1(b)(iibeing, an "Alternative Transaction"), Section 8.1(c), Section 8.1(d), or Section 8.1(f); provided that for a termination pursuant to Section 8.1(f), the failure to close by the Outside Date was not a result of Buyer failing to fulfill, in any material respect, its obligations under this Agreement, in addition to the Expense Reimbursement which shall be payable as provided in Section 6.7(b)(i), pay to Buyer Parent a break-up fee (the "Break-Up Fee, such payment of the Break-Up Fee to be made only, however, on the consummation of an Alternative Transaction by wire transfer(s") in immediately available funds 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 one or more bank accounts of this transaction and the value added by Parent and the Buyer (or any of its Affiliates) designated in writing by Buyer to Sellers out of the proceeds of such Alternative Transaction or otherwise satisfied pursuant to the terms of such Alternative Transaction or an order of the Bankruptcy Court approving such Alternative Transaction. (iii) The Parties acknowledge and agree that (A) the Parties have expressly negotiated the provisions of this Section 6.7(b) and the payment of the Break-Up Fee and the Expense Reimbursement are integral parts of this Agreementestablishing a bid standard or minimum for other bidders, (B) placing the Sellers' estate property in a sales configuration mode attracting other bidders to the absence of Sellers’ obligations to make these payments, Buyer would not have entered into this Agreement, Auction and (C) the Break-Up Fee for serving, by its name and the Expense Reimbursement shall constitute allowed administrative expense claims pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code. Except in the case of Fraud by the Sellers (or any of them), Buyer’s rights to the Break-Up Fee and/or the Expense Reimbursementits expressed interest, as applicable, pursuant to this Section 6.7(b) and subject to Section 3.3(a)(iii) and Section 9.11(c), shall be the sole and exclusive remedy of Buyer against Sellers and any of its Affiliates a catalyst for any Liability, damage other potential or other loss resulting from, the termination of this Agreement, breach of any representation, warranty covenant or agreement contained herein or the failure of the transactions contemplated hereby to be consummated, and none of Buyer nor any of its Affiliates shall have any other remedy or cause of action under or relating to this Agreement or any applicable Law. (iv) The obligations of Sellers to pay the Break-Up Fee and/or the Expense Reimbursement shall survive the termination of this Agreement in accordance with Section 8.2actual bidders. The Break-Up Fee and/or 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. (b) Exodus hereby agrees, in the event that (i) the Sellers withdraw or determine not to prosecute the Sale Motion, or (ii) a plan of reorganization or liquidation is filed by any of the Sellers or the Committee with the Bankruptcy Court which, if approved by the Bankruptcy Court, would be inconsistent with the transfer and assignment of the Purchased Assets to the Buyer or its Designees as contemplated by this Agreement, to pay to Parent an amount equal to the actual out-of-pocket costs and expenses (including, without limitation, expenses of counsel, expenses of financial advisors and expenses of other consultants and the HSR Act filing fee) incurred by Parent and the Buyer in connection with this Agreement and the transactions contemplated hereby, but in no event more than $5,000,000 (the "Expense Reimbursement"); provided, however, that in no event shall the Expense Reimbursement be payable to Parent (x) if Parent or the Buyer terminate this Agreement (other than in the event of an Auction Transaction) for any reason other than the willful breach by Exodus of any representation, warranty, covenant or agreement set forth in this Agreement, or (y) if this Agreement is terminated by Exodus pursuant to Sections 8.1(c) or (k). The Expense Reimbursement shall constitute an administrative priority claim against Sellers' estates under Sections 503(b) and 507(a)(1) of the Bankruptcy Code and shall be deemed earned paid immediately, without further order of the Bankruptcy Court, upon occurrence of the earlier of either of the events referred to in clause (i) or upon entry by the Bankruptcy Court of an order approving the Bidding Procedures Orderplan referred to in clause (ii) of this Section 6.4(b).

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 by Seller pursuant to Section 8.1(a), Section 8.1(d) or Section 8.1(g8.1(l)), 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 Bankruptcy Cases and other judicial and regulatory proceedings related to the Agreement, up to an aggregate amount of $150,000 1,000,000 (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 SellerSellers. (ii) If this Agreement is terminated by Buyer or Sellers pursuant to Section 8.1(b)(ii), Section 8.1(e) or Section 8.1(g), by Buyer pursuant to Section 8.1(c), Section 8.1(d8.1(f), Section 8.1(i), Section 8.1(j) or Section 8.1(f); provided that for a termination 8.1(k) or by Seller pursuant to Section 8.1(f8.1(m), the failure to close by the Outside Date was not a result of Buyer failing to fulfill, in any material respect, its obligations under this AgreementSellers shall, in addition to the Expense Reimbursement which shall be payable as provided in Section 6.7(b)(i5.3(f)(i), pay to Buyer the Break-Up Fee, such payment of the Break-Up Fee to be made only, however, on the consummation of an Alternative Transaction 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 Sellers out of the proceeds of such Alternative Transaction and immediately following the DIP Obligations being Paid in Full (as defined in the DIP Order) or otherwise satisfied pursuant to the terms of such Alternative Transaction or an order of the Bankruptcy Court approving such Alternative Transaction. (iii) The Parties acknowledge and agree that (A) the Parties have expressly negotiated the provisions of this Section 6.7(b5.3(f) and the payment of the Break-Break- Up Fee and the Expense Reimbursement are integral parts of this Agreement, (B) in the absence of Sellers’ obligations to make these payments, Buyer would not have entered into this Agreement, and (C) the Break-Up Fee and the Expense Reimbursement shall constitute allowed administrative expense claims superpriority Administrative Expense Claims pursuant to sections 105(a), 503(b) ), and 507(a)(2) of the Bankruptcy Code with priority over all other administrative expenses of the kind specified in section 503(b) of the Bankruptcy Code; provided that the priority of such superpriority Administrative Expense Claims shall be junior to (x) the Carve-Out and (y) Claims arising under the DIP ABL Financing Agreement and DIP Term Financing Agreement (including Claims of the DIP ABL Agent and DIP Term Loan Agent provided for pursuant to the DIP Order). Except in the case of Fraud by the Sellers (or any of them), Buyer’s rights to the Break-Up Fee and/or the Expense Reimbursement, as applicable, pursuant to this Section 6.7(b5.3(f) and subject to Section 3.3(a)(iii) and Section 9.11(c2.3(b)(iii), shall be the sole and exclusive remedy of Buyer against Sellers and any of its their respective Affiliates for any Liability, damage or other loss resulting from, the termination of this Agreement, breach of any representation, warranty covenant or agreement contained herein or the failure of the transactions contemplated hereby to be consummated, and none of Buyer nor any of its Affiliates shall have any other remedy or cause of action under or relating to this Agreement or any applicable Law. (iv) Each Seller acknowledges and agrees that such Seller shall be jointly and severally liable for the entire Break-Up Fee and the Expense Reimbursement payable by Sellers pursuant to this Agreement. (v) The obligations of Sellers to pay the Break-Up Fee and/or the Expense Reimbursement shall survive the termination of this Agreement in accordance with Section 8.2. The Break-Up Fee and/or the Expense Reimbursement shall be deemed earned upon entry of the Bidding Procedures Order.

Expense Reimbursement and Break-Up Fee. (ia) If In the event that (A) this Agreement is terminated (x) by Buyer the Purchaser pursuant to Sections 8.1(c)(i), (ii) or Sellers for any reason (iii), (y) by either Primary Party pursuant to Section 8.18.1(b)(i) (because of the failure of the condition specified in Section 7.1(d)) or (ii), other than termination or (z) by the Primary Seller Parties pursuant to Section 8.1(a8.1(d)(iii); and (B) or Section 8.1(g)when this Agreement is terminated, Sellers shall, upon the consummation of an Alternative Transaction, within five (5) Business Days after such termination Purchaser is not in breach of this Agreement, reimburse Buyer for 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, documented and reasonable out of pocket costs, fees and expenses incurred by Buyer or its Affiliates, including reasonable actual fees, costs and expenses of any professionals (including financial advisors, outside legal counsel, accountants, experts and consultants) retained reasonably incurred by Buyer or its Affiliates the Purchaser 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 which amount of shall not exceed Four Million Dollars ($150,000 4,000,000) (such costs, fees and expenses, the “Expense Reimbursement”), such reimbursement to . The Expense Reimbursement shall be made paid by wire transfer(s) in transfer of immediately available funds to one or not more bank accounts than five (5) Business Days following such termination and after the receipt by the NA Sellers of Buyer (or any of its Affiliates) designated written notice from the Purchaser describing the fees and expenses that constitute the Expense Reimbursement in writing by Buyer to Sellerreasonable detail. (iib) If In the event that (A) this Agreement is terminated (x) by Buyer the Purchaser pursuant to Sections 8.1(c)(i), (ii) or Sellers (iii), (y) by either Primary Party pursuant to Section 8.1(b)(ii), Section 8.1(c), Section 8.1(d), or Section 8.1(f); provided that for a termination (z) by the Primary Seller Parties pursuant to Section 8.1(f8.1(d)(iii); (B) when this Agreement is terminated, the failure to close by the Outside Date was Purchaser is not a result in breach of Buyer failing to fulfill, in any material respect, its obligations under this Agreement, which breach would result in addition a failure to satisfy any of the Expense Reimbursement which shall be payable as provided conditions to Closing set forth in Section 6.7(b)(i), pay to Buyer the Break-Up Fee, such payment of the Break-Up Fee to be made only, however, on the consummation of 7.1 or Section 7.2; and (C) an Alternative Transaction by wire transfer(sis consummated within twelve (12) in immediately available funds months following such termination, the Sellers shall pay to one or more bank accounts of Buyer (or any of its Affiliates) designated in writing by Buyer to Sellers out of the Purchaser, from the proceeds of such Alternative Transaction or otherwise satisfied pursuant to Transaction, in immediately available funds, not more than five (5) Business Days after the terms date of such Alternative Transaction or an order consummation, a cash fee of Twenty-Five Million Dollars ($25,000,000) (the Bankruptcy Court approving such Alternative Transaction“Break-Up Fee”). (iiic) The Parties acknowledge and agree that (A) Notwithstanding anything to the Parties have expressly negotiated contrary herein, the provisions of this Section 6.7(b) and Sellers’ obligation to pay the payment of the Expense Reimbursement and/or Break-Up Fee and the Expense Reimbursement are integral parts of this Agreement, (B) in the absence of Sellers’ obligations to make these payments, Buyer would not have entered into this Agreement, and (C) the Break-Up Fee and the Expense Reimbursement shall constitute allowed administrative expense claims pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code. Except in the case of Fraud by the Sellers (or any of them), Buyer’s rights to the Break-Up Fee and/or the Expense Reimbursement, as applicable, pursuant to this Section 6.7(b) and 8.2 is expressly subject to Section 3.3(a)(iii) and Section 9.11(c), shall be the sole and exclusive remedy of Buyer against Sellers and any of its Affiliates for any Liability, damage or other loss resulting from, the termination of this Agreement, breach of any representation, warranty covenant or agreement contained herein or the failure of the transactions contemplated hereby to be consummated, and none of Buyer nor any of its Affiliates shall have any other remedy or cause of action under or relating to this Agreement or any applicable Law. (iv) The obligations of Sellers to pay the Break-Up Fee and/or the Expense Reimbursement shall survive the termination of this Agreement in accordance with Section 8.2. The Break-Up Fee and/or the Expense Reimbursement shall be deemed earned upon entry of the U.S. Bidding Procedures Order and the Canadian Sales Process Order. SECTION 8.2. Section 1.58.

Expense Reimbursement and Break-Up Fee. (ia) If this Agreement is terminated by Buyer Purchaser or Sellers for any reason pursuant to Section 8.14.4(h) and, other than termination pursuant to Section 8.1(a) or Section 8.1(g)an Alternative Transaction is consummated, Sellers shall, upon then on the next -------------- Business Day following the consummation of the Alternative Transaction, Sellers shall pay to Purchaser a break-up fee in an amount equal to $5,000,000 (the "Break-Up Fee"). ------------ (b) If (i) Purchaser terminates this Agreement pursuant to the provisions of Section 4.4(e), or (ii) Sellers accept an Alternative Transaction at the --------------- conclusion of the auction contemplated by the Bidding Procedures Order or the Bankruptcy Court approves an Alternative Transaction, Sellers shall reimburse Purchaser for the amount of its out-of-pocket costs and expenses in connection with the preparation, negotiation, execution and delivery of this Agreement (including, without limitation, those costs and expenses incurred in connection with its due diligence activities relating thereto but not including any financing fees or borrowing costs incurred by Purchaser) in amount up to (but not in excess of) $3,675,000 (the "Expense Reimbursement") within five (5) Business Days days ---------------------- after such termination of this AgreementPurchaser's demand therefor accompanied by reasonable and customary documentation thereof. (c) The Expense Reimbursement and the Break-up Fee shall be payable to Purchaser in cash, 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 transfer of immediately available funds to one or more bank accounts of Buyer (or any of its Affiliates) an account designated in writing by Buyer to Seller. (ii) If this Agreement is terminated by Buyer or Sellers pursuant to Section 8.1(b)(ii), Section 8.1(c), Section 8.1(d), or Section 8.1(f); provided that for a termination pursuant to Section 8.1(f), the failure to close by the Outside Date was not a result of Buyer failing to fulfill, in any material respect, its obligations under this Agreement, in addition to the Expense Reimbursement which shall be payable as provided in Section 6.7(b)(i), pay to Buyer the Break-Up Fee, such payment of the Break-Up Fee to be made only, however, on the consummation of an Alternative Transaction 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 Sellers out of the proceeds of such Alternative Transaction or otherwise satisfied pursuant to the terms of such Alternative Transaction or an order of the Bankruptcy Court approving such Alternative Transaction. (iii) The Parties acknowledge and agree that (A) the Parties have expressly negotiated the provisions of this Section 6.7(b) and the Purchaser. Upon payment of the Break-Up Fee and the Expense Reimbursement are integral parts of Reimbursement, in each case as required by this Agreement, Sellers shall be deemed fully released and discharged from any liability or obligation arising under or resulting from this Agreement (B) other than those provisions of this Agreement that survive termination as set forth in the absence of Section 4.6). Sellers’ ' ------------ obligations to make these payments, Buyer would not have entered into this Agreement, and (C) the Break-Up Fee and the Expense Reimbursement shall constitute allowed administrative expense claims pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code. Except in the case of Fraud by the Sellers (or any of them), Buyer’s rights to the Break-Up Fee and/or the Expense Reimbursement, as applicable, pursuant to under this Section 6.7(b) and subject to Section 3.3(a)(iii) and Section 9.11(c), shall be the sole and exclusive remedy of Buyer against Sellers and any of its Affiliates for any Liability, damage or other loss resulting from, the termination of this Agreement, breach of any representation, warranty covenant or agreement contained herein or the failure of the transactions contemplated hereby to be consummated, and none of Buyer nor any of its Affiliates shall have any other remedy or cause of action under or relating to this Agreement or any applicable Law. (iv) The obligations of Sellers 4.7 to pay the Break-Up Fee and/or the and Expense ------------ Reimbursement shall survive the termination of this Agreement in accordance with Section 8.2. The Break-Up Fee and/or the Expense Reimbursement shall be deemed earned upon entry of the Bidding Procedures OrderAgreement.

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. (ii) If this Agreement is terminated by Buyer or Sellers pursuant to Section 8.1(b)(ii), Section 8.1(c), Section 8.1(d), or Section 8.1(f); provided that for a termination pursuant to Section 8.1(f), the failure to close by the Outside Date was not a result of Buyer failing to fulfill, in any material respect, its obligations under this Agreement, in addition to the Expense Reimbursement which shall be payable as provided in Section 6.7(b)(i), pay to Buyer the Break-Up Fee, such payment of the Break-Up Fee to be made only, however, on the consummation of an Alternative Transaction 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 Sellers out of the proceeds of such Alternative Transaction or otherwise satisfied pursuant to the terms of such Alternative Transaction or an order of the Bankruptcy Court approving such Alternative Transaction. (iii) The Parties acknowledge and agree that (A) the Parties have expressly negotiated the provisions of this Section 6.7(b) and the payment of the Break-Break- Up Fee and the Expense Reimbursement are integral parts of this Agreement, (B) in the absence of Sellers’ obligations to make these payments, Buyer would not have entered into this Agreement, and (C) the Break-Up Fee and the Expense Reimbursement shall constitute allowed administrative expense claims pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code. Except in the case of Fraud by the Sellers (or any of them), Buyer’s rights to the Break-Up Fee and/or the Expense Reimbursement, as applicable, pursuant to this Section 6.7(b) and subject to Section 3.3(a)(iii) and Section 9.11(c), shall be the sole and exclusive remedy of Buyer against Sellers and any of its Affiliates for any Liability, damage or other loss resulting from, the termination of this Agreement, breach of any representation, warranty covenant or agreement contained herein or the failure of the transactions contemplated hereby to be consummated, and none of Buyer nor any of its Affiliates shall have any other remedy or cause of action under or relating to this Agreement or any applicable Law. (iv) The obligations of Sellers to pay the Break-Up Fee and/or the Expense Reimbursement shall survive the termination of this Agreement in accordance with Section 8.2. The Break-Up Fee and/or the Expense Reimbursement shall be deemed earned upon entry of the Bidding Procedures Order.

Expense Reimbursement and Break-Up Fee. (i) If this Agreement is terminated by Buyer or Sellers for any reason Purchaser shall have -------------------------------------- elected not to proceed with the Additional Closing pursuant to Section 8.18.3(b) hereof, other than termination or if Purchaser or the Company shall have elected not to proceed with the Additional Closing pursuant to Section 8.1(a8.3(c) or Section 8.1(g)hereof and no Competing Transaction shall have been proposed which has a value per share of Common Stock in excess of $5.75, Sellers shallthe Company shall reimburse Purchaser for out-of-pocket expenses incurred by Purchaser in connection with the transactions contemplated hereby, upon the consummation of an Alternative Transactionincluding without limitation, within five (5) Business Days after such termination of all expenses incurred in connection with this Agreement, reimburse Buyer for the negotiations leading to its execution, the due diligence investigations of the Company, the preparation and negotiation of any related agreements, and all actual, documented and reasonable out of pocket costs, fees and expenses incurred by Buyer or Purchaser and its Affiliates, including reasonable fees, costs and expenses of any professionals (including financial advisors, outside legal counselaffiliates to investment bankers, 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 attorneys and other judicial and regulatory proceedings related representatives, provided that the Company shall not be obligated to reimburse Purchaser for more than $250,000 of such expenses in the Agreementaggregate. If (i) Purchaser shall have elected not to proceed with the Additional Closing pursuant to Section 8.3(a) hereof, 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. (ii) If this Agreement is terminated by Buyer Purchaser or Sellers the Company shall have elected not to proceed with the Additional Closing pursuant to Section 8.1(b)(ii)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, Section 8.1(c), Section 8.1(d)which has a value per share of Common Stock in excess of $5.75, or Section 8.1(f); provided that for a termination (iii) the Company shall have elected not to proceed with the Additional Closing pursuant to Section 8.1(f)8.3(d) hereof, the failure to close by the Outside Date was not a result of Buyer failing to fulfill, in any material respect, its obligations under this Agreement, in addition to the Expense Reimbursement which shall be payable as provided in Section 6.7(b)(i), pay to Buyer the Break-Up Fee, such payment of the Break-Up Fee to be made only, however, on the consummation of an Alternative Transaction 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 Sellers out of the proceeds of such Alternative Transaction or otherwise satisfied pursuant to the terms of such Alternative Transaction or an order of the Bankruptcy Court approving such Alternative Transaction. (iii) The Parties acknowledge and agree that (A) the Parties have expressly negotiated the provisions of this Section 6.7(b) and the payment of the Break-Up Fee and the Expense Reimbursement are integral parts of this Agreement, (B) in the absence of Sellers’ obligations to make these payments, Buyer would not have entered into this Agreement, and (C) the Break-Up Fee and the Expense Reimbursement shall constitute allowed administrative expense claims pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code. Except then in the case of Fraud by the Sellers (or any of them(i), Buyer’s rights (ii) or (iii) of this Section 4.11, the Company will pay $1,000,000 to Purchaser. In the Break-Up Fee and/or event the Expense Reimbursement, as immediately preceding sentence of this Section 4.11 is applicable, pursuant to then the first sentence of this Section 6.7(b) and subject to Section 3.3(a)(iii) and Section 9.11(c), shall 4.11 will not be the sole and exclusive remedy of Buyer against Sellers and any of its Affiliates for any Liability, damage or other loss resulting from, the termination of this Agreement, breach of any representation, warranty covenant or agreement contained herein or the failure of the transactions contemplated hereby to be consummated, and none of Buyer nor any of its Affiliates shall have any other remedy or cause of action under or relating to this Agreement or any applicable Lawapplicable. (iv) The obligations of Sellers to pay the Break-Up Fee and/or the Expense Reimbursement shall survive the termination of this Agreement in accordance with Section 8.2. The Break-Up Fee and/or the Expense Reimbursement shall be deemed earned upon entry of the Bidding Procedures Order.