Breakup Fee; Expense Reimbursement. If this Agreement (a) is terminated pursuant to Sections 9.1(b), 9.1(c), 9.1(e), 9.1(f), 9.1(h), 9.1(i), 9.1(j) or 9.1(m) and (b) at the time of such termination, Seller was not then able to terminate this Agreement pursuant to Section 9.1(k), then Seller shall promptly pay to Purchaser by wire transfer of immediately available funds, a termination fee in an amount equal to $12,000,000 (the “Breakup Fee”) and the Purchaser Expense Reimbursement; provided, however, that (i) if this Agreement has been terminated and, at the time of such termination, Purchaser or Seller has the right to terminate this Agreement pursuant to Section 9.1(l) or (ii) if this Agreement has been terminated pursuant Section 9.1(m) and, at the time of such termination, the condition set forth in Section 8.1(a) has not been satisfied, then, in either case, the Breakup Fee and the Purchaser Expense Reimbursement shall not be payable. No bidder other than Purchaser shall be entitled to the Breakup Fee or Purchaser Expense Reimbursement. The Breakup Fee and Purchaser Expense Reimbursement shall be free of any Liens. The parties hereto acknowledge and agree that the Breakup Fee and Purchaser Expense Reimbursement, on the terms and subject to the conditions to the payment thereof, (a) shall be Purchaser’s sole recourse in connection with this Agreement and the other Transaction Documents in the event this Agreement is terminated prior to the Closing under Section 9.1 and (b) shall (i) constitute allowed superpriority administrative expenses of the Debtors pursuant to sections 105(a), 364(c)(1), 503(b) and 507(a)(2) of the Bankruptcy Code with priority over all other administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy Code (except those administrative expenses granted to the lenders under the Debtors’ post-petition debtor in possession financing facility and the adequate protection claims of the lenders under the Pre-Petition Credit Facility); provided that, upon a sale of the Transferred Assets (or a material portion of them), including pursuant to plan of reorganization under chapter 11 of the Bankruptcy Code or a liquidation under chapter 7 of the Bankruptcy Code, the Breakup Fee and Purchaser Expense Reimbursement shall be paid from the proceeds of such sale prior to any payments or other recoveries being made in respect of any post-petition debtor in possession financing facility of the Debtors or the Pre-Petition Credit Facility.
Breakup Fee; Expense Reimbursement. In the event, pursuant to the Bid Procedures Order, the Bankruptcy Court Order approving this Agreement and the sale of the Assets to Purchaser hereunder is not obtained and the Assets are sold to another entity or Person, then, Seller shall (i) subject to Bankruptcy Court approval, pay Purchaser the sum of $234,000, representing the "Breakup Fee" (herein so called) provided for in the Bid Procedures Order, and (ii) reimburse Purchaser for its actual expenses incurred in conducting due diligence of the Assets, and negotiating the terms of this Agreement, not to exceed $150,000, (the "Expense Reimbursement") in accordance with the Bid Procedures Order.
Breakup Fee; Expense Reimbursement. (a) Subject to the terms and conditions below, FCO agrees (i) to pay to the Purchaser, in cash, a fee in the amount of $600,000 (the "Breakup Fee"), and (ii) to reimburse Purchaser for the actual, reasonable, documented fees, costs and expenses incurred by Purchaser in connection with its due diligence and negotiation of the proposed Transactions (including, without limitation, fees and expenses of legal counsel, accountants, and financial advisors) in an amount up to $400,000 (the "Expense Reimbursement Amount"). The Breakup Fee and Expense Reimbursement Amount shall be payable by FCO to Purchaser in accordance with Section 8.2(b) below, if by order of the Bankruptcy Court the consummation of the Transactions by Purchaser pursuant to this Agreement does not occur because of:
Breakup Fee; Expense Reimbursement. In the event, pursuant to the Bid Procedures Order, the Bankruptcy Court Order approving this Agreement and the sale of Assets to Acquiror hereunder is not obtained and the Assets are sold to another entity or Person, then, in addition to the return of the Xxxxxxx Money Deposit and all interest earned thereon to Acquiror pursuant to Section 9.2 hereof Seller shall (i) subject to Bankruptcy Court approval, pay Acquiror the sum of $1,000,000, representing the "Breakup Fee" (herein so called) provided for in the Bid Procedures Order, and (ii) reimburse Acquiror for its actual expenses incurred in conducting due diligence of the Business, and negotiating the terms of the Agreement, not to exceed $150,000, (the "Expense Reimbursement") in accordance with the Bid Procedures Order. The foregoing sums shall be paid to Acquiror within ten (10) Business Days after this Agreement is terminated pursuant to Section 9.1(c) hereof.
Breakup Fee; Expense Reimbursement. (a) If this Agreement is terminated pursuant to the consummation of a Competing Transaction and Buyers are not otherwise in breach of their obligations under this Agreement, the Bidding Procedures Order, the DIP Loan Agreement or the Sale Order, then, in such case, Sellers shall, jointly and severally, without the requirement of any notice or demand from Buyers or any application to or order of the Bankruptcy Court, promptly, but in no event later than three Business Days after the date of the consummation of such Competing Transaction, pay or cause to be paid to Buyers (i) all reasonable out-of-pocket and documented fees and expenses (including reasonable attorneys’ fees and expenses) incurred by Buyers in connection with or related to Buyers’ evaluation, consideration, analysis, negotiation, and documentation of this Agreement or the transactions contemplated herein (the “Expense Reimbursement”) and (ii) a fee in an amount equal to 2.5% of the cash portion of the Purchase Price (the “Breakup Fee”) in addition to the Expense Reimbursement, in each case by wire transfer of immediately available funds to such account or accounts as may be specified in a written notice by Buyers given to Sellers; provided, however that the Breakup Fee and Expense Reimbursement, in the aggregate, shall not exceed an amount equal to 3.5% of the cash portion of the Purchase Price. The Expense Reimbursement and the Breakup Fee shall, pursuant to the Bidding Procedures Order, constitute allowed administrative expenses of Sellers’ estates under Section 503(b) of the Bankruptcy Code; provided, however, that notwithstanding any provision of this Agreement to the contrary, the Expense Reimbursement and Breakup Fee shall be payable only from the proceeds of a Competing Transaction. The Bidding Procedures Order shall provide for the payment by Sellers of the Breakup Fee and Expense Reimbursement (prior to the repayment of the obligations owed on account of any prepetition secured financing) as and when such amounts are due and payable hereunder.
Breakup Fee; Expense Reimbursement. Pursuant to the Bid Procedures Order, in the event that some or all of the Assets are sold, conveyed or otherwise transferred to any other entity or Person, other than the Acquiror (the "Alternative Transaction"), in addition to the return of the Xxxxxxx Money Deposit and all interest earned thereon to Acquiror pursuant to Section 9.2, the Seller shall pay Acquiror the sum of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) (the "Breakup Fee"). The Breakup Fee shall be paid to Acquiror by wire transfer of immediately available funds to an account designated by Acquiror or its designee within two (2) Business Days after the closing of the Alternative Transaction. Acquiror's right to payment of the Breakup Fee described in this Section shall have a super-priority administrative claim status in the Bankruptcy Cases pursuant to Sections _05 and 507(b) of the Bankruptcy Code, senior to all other priority and super-priority administrative expense claims (except for the claims of the Seller's debtor-in-possession lenders and any claim under the carve-out from such lenders' collateral as provided for in any order authorizing such debtor-in- possession financing entered in the Bankruptcy Cases), and Acquiror shall be entitled to apply to the Bankruptcy Court for specific performance of this Section in the event that Seller fails to pay Acquiror.
