Other Payments and or Consideration. SECTION 2.01 BREAK-UP FEES. Debtor hereby acknowledges and agrees that Purchaser has expended, and will continue to expend, considerable time and expense in connection with this Agreement, and the negotiation hereof, and that this Agreement provides substantial value to, is beneficial to, and is necessary to preserve Debtor’s bankruptcy estate and that Purchaser has made a substantial contribution to Debtor’s bankruptcy estate. In consideration thereof, Debtor agrees as follows: If Debtor terminates this Agreement pursuant to the exercise of the Fiduciary Out or there is a Competing Transaction Event, then Debtor will pay to Purchaser a cash fee in the aggregate amount of four percent (4%) of the Purchase Price $9,991,532.04 (the “Break-Up Fee”) at the consummation and closing of the Competing Transaction or upon the exercise of the Fiduciary Out; provided, however, that Debtor will not be required to pay the Break-Up Fee if (x) the Closing does not occur and at the time this Agreement is terminated a material breach of this Agreement by Purchaser has persisted for not less than twenty (20) days following Purchaser’s receipt of written notice of such material breach from Debtor, or (y) if this Agreement is terminated pursuant to 9.02(a) by Debtor and Purchaser has refused in writing within one (1) day prior to such termination to waive the condition set forth in Section 5.01(g) (provided that the Approval Order has been entered by the Bankruptcy Court). The Break-Up Fee shall be paid to Purchaser without setoff or recoupment and shall not be subject to defense or offset on account of any claim, defense or counterclaim and shall be paid without any requirement for Bankruptcy Court review or further Bankruptcy Court order. The terms set forth in this Section 2.01 shall survive termination of this Agreement and shall remain in full force and effect regardless of whether the transactions contemplated by this Agreement are consummated. The parties acknowledge that the agreements contained in this Section 2.01 are an integral part of the transactions contemplated by this Agreement, are actually necessary to preserve the value of Debtor’s estate and constitute liquidated damages and not a penalty, and that, without these agreements, Purchaser would not have entered into this Agreement. The Break-Up Fee constitutes an allowed administrative expense against Debtor’s estate under the Bankruptcy Code.
Other Payments and or Consideration
