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

Break-Up Fee and Expense Reimbursement. In the event that this Agreement is terminated by Purchaser pursuant to any of the rights of termination granted to Purchaser under subsections 9.2(ii)-(iii) or 9.2(vi), or if the Seller terminates this Agreement pursuant to the second paragraph of Section 9.3 hereof, (each of subsections 9.2(ii)-(iii), 9.2(vi) and the second paragraph of Section 9.3 hereof, a “Specified Termination Event”), provided that a breach by Purchaser of any material term or provision of this Agreement was not the material cause of or a material contributing factor to the Specified Termination Event, the Sellers shall pay the Break-Up Fee and the Expense Reimbursement to the Purchaser or its designee not later than three Business Days following any Specified Termination Event; provided, however, to the extent the Sellers shall have used commercially reasonable efforts seeking the entry of the Confirmation Order by July 31 2011, and notwithstanding such efforts, each or all of the Sellers did not cause (or directed to cause), directly or indirectly, the action or contribute, in anyway, to the reason or circumstances that resulted in the failure of the Bankruptcy Court to enter the Confirmation Order by July 31, 2011, then to the extent Purchaser chooses to terminate this Agreement in accordance with Sections 9.4 (ii)-(iii), Seller shall only pay (in accordance with this Section 9.4) to Purchaser the July 31 Expense Reimbursement. The Seller’s obligation to make any payment on account of the Break-Up Fee and the Expense Reimbursement shall have super-priority administrative expense status, senior to all other administrative expense claims (other than Seller’s obligations pursuant to the Xxxxxx DIP Facility and the Five Mile DIP Facility and the DIP Orders (as such terms are defined in the Plan), which obligations shall be pari passu with the Seller’s obligation to pay the Break-Up and Expense Reimbursement, under Section 364(c)(1) of the Bankruptcy Code, until such payment is made.

Break-Up Fee and Expense Reimbursement. (a) In the event that this Agreement is terminated after the date hereof and prior to the receipt of Nyer Shareholder Approval, Seller or Nyer receives an unsolicited bona fide written proposal for a transaction by Purchaser a third party or a tender offer initiated by a third party, in each case, pursuant to any which the economic consideration shall be at least $350,000.00 greater than the sum of (i) $17,750,000.00, plus (ii) the rights of termination granted to Purchaser under subsections 9.2(ii)-(iiiPrepaid Rent Amount and plus (iii) or 9.2(vi), or if the Seller terminates this Agreement pursuant to the second paragraph of Section 9.3 hereof, Parata Equipment Amount (each of subsections 9.2(ii)-(iii), 9.2(vi) and the second paragraph of Section 9.3 hereof, a an “Specified Termination EventAlternate Transaction”), Seller or Nyer may furnish non-public information to, and negotiate with, such third party; provided however, that Seller or Nyer provide Buyer with written notice as provided below and shall pay to Buyer (i) a breach break-up fee (the “Break-Up Fee”) in the amount of $300,000.00 and (ii) an amount equal to all of the actual out-of-pocket expenses, up to a total of $200,000.00, incurred by Purchaser of any material term Buyer or provision of its Affiliates in connection with the transactions contemplated by this Agreement was not (the material cause “Expense Reimbursement”), which such amounts shall be paid to Buyer in accordance with Section 11.2(b). Nothing in this Section 8.17 shall prohibit the Board of Directors of Nyer from refusing to make, withdrawing, qualifying, conditioning, or a material contributing factor modifying its recommendation of the transactions contemplated by this Agreement if, prior to the Specified Termination EventClosing Date, there exists an Alternate Transaction and the Sellers Board of Directors of Nyer determines in good faith that any failure to do so would be inconsistent with the best interests of the shareholders of Nyer; provided, however, that the Board of Directors of Nyer has provided Buyer with five business days prior written notice of its intent to effect such withdrawal, modification, qualification, conditioning or refusal to recommend (which such notice shall include reasonable details regarding the cause for, and the nature of, such withdrawal, modification, qualification, conditioning or refusal to recommend). If Seller or its Affiliate enters into such Alternate Transaction, this Agreement shall terminate but for the confidentiality obligations and the obligation of Seller to pay the Break-Up Fee and the Expense Reimbursement to the Purchaser or its designee not later than three Business Days following any Specified Termination Event; provided, however, to the extent the Sellers shall have used commercially reasonable efforts seeking the entry of the Confirmation Order by July 31 2011, and notwithstanding such efforts, each or all of the Sellers did not cause (or directed to cause), directly or indirectly, the action or contribute, in anyway, to the reason or circumstances that resulted in the failure of the Bankruptcy Court to enter the Confirmation Order by July 31, 2011, then to the extent Purchaser chooses to terminate this Agreement in accordance with Sections 9.4 (ii)-(iii), Seller shall only pay (in accordance with this Section 9.4) to Purchaser the July 31 Expense Reimbursementas provided herein. The Seller’s obligation to make any payment on account of the Break-Up Fee and the Expense Reimbursement shall have super-priority administrative are intended to compensate Buyer and its Affiliates for the time and expense status, senior dedicated to all other administrative expense claims (other than Seller’s obligations pursuant to the Xxxxxx DIP Facility and the Five Mile DIP Facility and the DIP Orders (as such terms are defined in the Plan), which obligations shall be pari passu with the Seller’s obligation to pay the Break-Up and Expense Reimbursement, under Section 364(c)(1) of the Bankruptcy Code, until such payment is madethis transaction.

Break-Up Fee and Expense Reimbursement. (a) The parties hereto acknowledge and agree that the terms and conditions set forth in this Section 8.3 with respect to the payment of the Break-Up Fee and Expense Reimbursement shall only become operative if and to the extent that the Bankruptcy Court enters the Sale Procedures Order approving such terms and conditions, it being understood and agreed that the consummation of the transactions contemplated by this Agreement shall be conditioned upon the approval by the Bankruptcy Court of the provisions of the Sale Procedures Order and the entry of an order with respect thereto. In the event that this Agreement is terminated by Purchaser (A) Buyer pursuant to any Sections 8.1(d) (unless Buyer’s right to termination arose solely under clause (i) of Section 8.1(d) as a result of one or more inaccuracies of Sellers’ representations and warranties that, to the knowledge of Sellers, were true and correct in all material respects as of the rights date of termination granted to Purchaser under subsections 9.2(ii)-(iii) or 9.2(vithis Agreement), 8.1(f)(i), 8.1(f)(v), 8.1(g), or if the Seller terminates this Agreement 8.1(j) or (B) Buyer or Sellers’ Representative, as applicable, pursuant to the second paragraph of Section 9.3 hereof, (each of subsections 9.2(ii)-(iii8.1(h), 9.2(vi) and the second paragraph of Section 9.3 hereof, a “Specified then Buyer shall have an Allowed Termination Event”), provided that a breach by Purchaser of any material term or provision of this Agreement was not the material cause of or a material contributing factor Claim equal to the Specified Termination Event, amount of the Break-Up Fee and Sellers shall pay the Break-Up Fee and the Expense Reimbursement to the Purchaser or its designee not later than three Business Days following any Specified Termination Event; provided, however, to the extent the Sellers shall have used commercially reasonable efforts seeking the entry of the Confirmation Order by July 31 2011, and notwithstanding such efforts, each or all of the Sellers did not cause (or directed to cause), directly or indirectly, the action or contribute, Buyer in anyway, to the reason or circumstances that resulted in the failure of the Bankruptcy Court to enter the Confirmation Order by July 31, 2011, then to the extent Purchaser chooses to terminate this Agreement in accordance with Sections 9.4 (ii)-(iii), Seller shall only pay (cash in accordance with this Section 9.48.3. In addition, if (I) (x) this Agreement is terminated pursuant to Purchaser Section 8.1(b) or 8.1(c), and the July 31 condition set forth in Section 7.2(j) is not satisfied or (y) this Agreement is terminated by Buyer pursuant to Section 8.1(d) and Buyer’s right to termination arose solely under clause (i) of Section 8.1(d) as a result of one or more inaccuracies of Sellers’ representations and warranties that, to the knowledge of Sellers, were true and correct in all material respects as of the date of this Agreement and (II) Buyer has complied in all material respects with all obligations required under this Agreement to be performed by it through the date of such termination, then Buyer shall have an Allowed Termination Claim equal to the amount of the Expense Reimbursement, and Sellers shall pay the Expense Reimbursement to Buyer in cash in accordance with this Section 8.3. The Seller’s obligation to make any payment on account Payment of the Break-Up Fee and or the Expense Reimbursement shall have super-priority administrative expense statusReimbursement, senior to all other administrative expense claims (other than Seller’s obligations as applicable, pursuant to the Xxxxxx DIP Facility and the Five Mile DIP Facility and the DIP Orders (as such terms are defined in the Plan), which obligations this Section 8.3 shall be pari passu with made on the Seller’s obligation to pay earlier of (i) the date on which Sellers consummate an Alternative Transaction, including, but not limited to, a sale, recapitalization or securitization, (ii) the effective date of a plan of reorganization for one or more of the Sellers or (iii) the date that is five (5) Business Days after the termination of this Agreement. Except as specifically set forth in this Section 8.3, the Break-Up Fee and Expense Reimbursement shall not be payable in connection with any termination of this Agreement. Except in the case of fraud or intentional misconduct by any Seller, Buyer’s right to receive payment of the Break-Up Fee or the Expense Reimbursement, under Section 364(c)(1) as applicable, from Sellers as herein provided shall be the sole and exclusive remedy available to Buyer against Sellers or any of their respective former, current or future stockholders, directors, officers, Affiliates or agents with respect to this Agreement and the transactions contemplated hereby in the event that this Agreement is terminated pursuant to the terms set forth herein, and upon payment of the Bankruptcy CodeBreak-Up Fee or the Expense Reimbursement, until as applicable, in accordance with this Agreement in circumstances described herein, none of Sellers or any of their respective former, current or future stockholders, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. Sellers’ right to terminate this Agreement and receive payment of the Buyer Termination Fee as herein provided shall be the sole and exclusive remedy available to Sellers against Buyer or any of its former, current or future stockholders, directors, officers, Affiliates or agents with respect to this Agreement and the transactions contemplated hereby, and upon payment of the Buyer Termination Fee in accordance with this Agreement in the circumstances described herein, neither Buyer nor any of its former, current or future stockholders, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. The Parties expressly agree and acknowledge that (i) it would be extremely difficult or impracticable to ascertain the actual damages that would be incurred in the event of a termination in the circumstances in which the Break-Up Fee or the Expense Reimbursement, on the one hand, or the Buyer Termination Fee, on the other hand, is payable in accordance with this Agreement, (ii) neither the Break-Up Fee , Expense Reimbursement, nor the Buyer Termination Fee is a penalty, but rather they constitute liquidated damages in a reasonable amount that will compensate the applicable Parties in the circumstances in which such payment is madeamounts are payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and (iii) the agreements contained in Sections 2.2 and 8.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither Buyer nor Sellers would enter into this Agreement.

Break-Up Fee and Expense Reimbursement. In (a) Sellers hereby agree, in the event that this Agreement is terminated by Purchaser pursuant to Sellers (i) accept a bid, for any of the rights Acquired Assets, other than that of termination granted to Purchaser under subsections 9.2(ii)-(iiiPurchaser, as the highest or otherwise best offer (an "AUCTION TRANSACTION") or 9.2(vi(ii) sell, transfer, leases or otherwise dispose, directly or indirectly, to one or more third parties other than Purchaser (i.e., not as part of a standalone restructuring) including through an asset sale, stock sale, merger, reorganization or other similar transaction (by Sellers or their Affiliates or otherwise), all or a substantial portion of the Acquired Assets (or agree to do any of the foregoing) in a transaction or series of transactions (including in any such transaction or series of transactions sponsored by one or more third parties) within six (6) months from the completion of the auction contemplated by the Bidding Procedures (any of clause (i) or (ii) being, an "ALTERNATIVE TRANSACTION"), to pay to Purchaser, upon the closing of the Alternative Transaction, a break-up fee (the "BREAK-UP FEE") (or if the Seller terminates this Agreement pursuant to the second paragraph of Section 9.3 hereof, (each of subsections 9.2(ii)-(iii), 9.2(vi) such Alternative Transaction does not close and the second paragraph of Section 9.3 hereofapplicable transaction agreement(s) is terminated, a “Specified Termination Event”), provided that a breach by Purchaser of any material term or provision of this Agreement was not the material cause of or a material contributing factor to the Specified Termination Event, the Sellers shall pay to Purchaser the Break-Up Fee in an amount equal to the lesser of $5,000,000 and the Expense Reimbursement amount of any deposit made by the prospective party to the Alternative Transaction that is retained by Sellers in connection with such termination) in the amount of $5,000,000 to compensate Purchaser for the time and expense dedicated to this transaction and the value added by Purchaser in (1) establishing a bid standard or minimum for other bidders with respect to the Acquired Assets, (2) placing the Acquired Assets in a sales configuration mode attracting other bidders to the Auction and (3) for serving, by its designee not later than three Business Days following any Specified Termination Eventname and its expressed interest, as a catalyst for other potential or actual bidders for the Acquired Assets; provided, however, to the extent the Sellers shall have used commercially reasonable efforts seeking the entry of the Confirmation Order by July 31 2011, and notwithstanding such efforts, each or all of the Sellers did not cause (or directed to cause), directly or indirectly, the action or contribute, in anyway, to the reason or circumstances that resulted in the failure of event the Bankruptcy Court to enter does not approve the Confirmation Order by July 31, 2011, then to the extent Purchaser chooses to terminate provisions in this Agreement in accordance with Sections 9.4 (ii)-(iii), Seller shall only pay (in accordance with this Section 9.4) relating to Purchaser the July 31 Expense Reimbursement. The Seller’s obligation to make any payment on account of the Break-Up Fee Fee, the Purchase Price pursuant to SECTION 2.03 shall be reduced to $206,300,000 and the Expense Reimbursement provisions set forth in SECTION 5.09(b) shall have super-priority administrative expense status, senior to all other administrative expense claims (other than Seller’s obligations pursuant to the Xxxxxx DIP Facility and the Five Mile DIP Facility and the DIP Orders (as such terms are defined in the Plan), which obligations shall be pari passu with the Seller’s obligation to pay the apply. Sellers further agree that any Break-Up Fee will constitute an administrative priority claim against Sellers' estate under sections 503(b) and Expense Reimbursement, under Section 364(c)(1507(a)(1) of the Bankruptcy Code, until such payment is made.