Common use of Make Whole Clause in Contracts

Make Whole. In addition to any other rights available to the Holder, if as a result of a Delivery Failure in respect of Warrant Shares the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases shares of Common Stock to deliver in satisfaction of a sale anticipated to be made by the Holder of all or portion of such Warrant Shares which are the subject of such Delivery Failure (an “Anticipated Sale”), then the Company shall (i) pay in cash to the Holder the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) an amount equal to the product of (A) the number of Warrant Shares that the Holder anticipated to sell in such Anticipated Sale, multiplied by (B) the Exercise Price that would have been payable for such Warrant Shares, and (ii) at the option of the Holder, either reinstate the portion of this Warrant and equivalent number of Warrant Shares in respect of which such Delivery Failure occurred or deliver to the Holder the number of Warrant Shares that would have been issued had the Company timely complied with its obligations hereunder to issue such Warrant Shares upon such exercise. The Holder shall provide the Company written notice indicating the amounts payable to the Holder, together with applicable confirmations and other evidence reasonably requested by the Company. Nothing herein shall limit the Holder’s right to receive Additional Compensation pursuant to Section 12 or pursue any other remedies available to it hereunder at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to any Delivery Failure.

Make Whole. In addition to any other rights available (a) Not less than 30 days prior to the HolderClosing, if GWG may at its option secure a valuation opinion from a nationally recognized valuation firm to the effect that the MLP Units will have, as of the Closing Date, a result fair value of not less than $10.00 per unit. In the event such opinion ascribes a Delivery Failure in respect fair value of Warrant Shares less than $9.00 per unit to the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases shares of Common Stock to deliver in satisfaction of a sale anticipated to be made by the Holder of all or portion of such Warrant Shares which are the subject of such Delivery Failure (an “Anticipated Sale”)MLP Units, then GWG and the Company shall (i) pay engage a second nationally recognized valuation firm, as they shall mutually agree, to conduct a final and binding valuation at the cost of the Company. If, and only in cash the event that, such final valuation ascribes a value to the Holder MLP Units of less than $9.00 per unit, the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares Company undertakes to provide such additional number of Common Stock so purchased exceeds (y) MLP Units to GWG at Closing as shall be necessary to provide an amount aggregate value to GWG equal to the product value of the Consideration. The Company agrees to assist and cooperate with GWG and the valuation firms in completing such valuations. (Ab) In furtherance of the number Company’s undertaking in Section 8.4(a) above, the Company agrees to enter into such arrangements with such of Warrant Shares its existing securityholders as it deems necessary and appropriate, in its sole discretion, to preclude any dilution to its common unitholders (including, as of the Closing, GWG) that otherwise may result from the Holder anticipated make-whole obligation in Section 8.4(a). (c) In connection therewith, GWG irrevocably covenants and agrees, as of the date of Closing, as the then majority holder of the Company’s Common Units, to sell in such Anticipated Sale, multiplied by (B) waive any restriction the Exercise Price Company may have under any contractual provision relating to the partnership interests/units of the Company or its Subsidiaries that would have been payable for such Warrant Sharesotherwise prevent or limit the conversion of outstanding partnership interests/units, and (ii) at or any of them, into Common Units to satisfy the option Company’s obligations under this Section 8.4 or any other transaction or series of the Holder, either reinstate the portion transactions arising out of this Warrant and equivalent number of Warrant Shares in respect of which such Delivery Failure occurred or deliver relating to the Holder transactions contemplated hereunder; provided, however, that this irrevocable waiver and consent shall apply only to conversions effected in compliance with the number of Warrant Shares that would have been issued had the Company timely complied with its obligations hereunder to issue such Warrant Shares upon such exercise. The Holder shall provide the Company written notice indicating the amounts payable to the Holder, together with applicable confirmations and other evidence reasonably requested by the Company. Nothing herein shall limit the Holder’s right to receive Additional Compensation pursuant to Section 12 or pursue any other remedies available to it hereunder at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to any Delivery FailureAmended & Restated Limited Partnership Agreement.

Make Whole. In addition If, pursuant to any other rights available to the Holder, if as a result of a Delivery Failure in respect of Warrant Shares the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases shares of Common Stock to deliver in satisfaction of a sale anticipated to be made by the Holder of all or portion of such Warrant Shares which are the subject of such Delivery Failure (an “Anticipated Sale”Section 3(a), then Parent exercises the Company shall Option, then, at Parent's election: (i) pay in cash Parent will, at or prior to the Holder time of payment in connection with any Superior Proposal, pay (the amount by which (x"Alternative Payment") to the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) an Stockholder a per Share amount equal to the product consideration paid to all stockholders of (A) the number of Warrant Shares Company in the Superior Proposal, less the Purchase Price per Share, plus any additional amount as may be necessary so that the Holder anticipated to sell aggregate consideration, after payment of all federal, state and local income taxes (the "Aggregate After Tax Consideration") received by the Stockholder in such Anticipated Sale, multiplied by (B) connection with the Exercise Price Alternative Payment is not less than the Aggregate After Tax Consideration that would have been payable for such Warrant Shares, and received by the Stockholder as if it had been paid the consideration under the Superior Proposal; or (ii) at prior to the option end of the Holdertender period, either reinstate the portion effective date of this Warrant the merger or the consummation date for the Superior Proposal, Parent shall rescind the exercise of the Option and equivalent number return the Stockholder's Shares to the Stockholder and the Stockholder, upon receipt of Warrant such Shares, shall repay the Purchase Price to the Parent and, provided that the Stockholder tenders its Shares to the Superior Proposal or votes its Shares in respect favor of which such Delivery Failure occurred the Superior Proposal, and the Stockholder actually receives the consideration paid in connection with the Superior Proposal (the "Superior Proposal Payment"), then at or deliver prior to the Holder time of the number of Warrant Shares Superior Proposal Payment, Parent shall pay to the Stockholder any additional amount as may be necessary so that the Aggregate After Tax Consideration received by the Stockholder in connection with the Superior Proposal is not less than the Aggregate After Tax Consideration it would have been issued received in connection with the Superior Proposal had Parent never exercised the Company timely complied with its obligations hereunder to issue such Warrant Shares upon such exercise. The Holder shall provide the Company written notice indicating the amounts payable to the Holder, together with applicable confirmations and other evidence reasonably requested by the Company. Nothing herein shall limit the Holder’s right to receive Additional Compensation pursuant to Section 12 or pursue any other remedies available to it hereunder at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to any Delivery FailureOption.

Make Whole. In addition to any other rights available (a) Not less than 30 days prior to the HolderClosing, if GWG may at its option secure a valuation opinion from a nationally recognized valuation firm to the effect that the MLP Units will have, as of the Closing Date, a result fair value of not less than $10.00 per unit. In the event such opinion ascribes a Delivery Failure in respect fair value of Warrant Shares less than $9.00 per unit to the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases shares of Common Stock to deliver in satisfaction of a sale anticipated to be made by the Holder of all or portion of such Warrant Shares which are the subject of such Delivery Failure (an “Anticipated Sale”)MLP Units, then GWG and the Company shall (i) pay engage a second nationally recognized valuation firm, as they shall mutually agree, to conduct a final and binding valuation at the cost of the Company. If, and only in cash the event that, such final valuation ascribes a value to the Holder MLP Units of less than $9.00 per unit, the amount by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares Company undertakes to provide such additional number of Common Stock so purchased exceeds (y) MLP Units to GWG at Closing as shall be necessary to provide an amount aggregate value to GWG equal to the product value of the Consideration. The Company agrees to assist and cooperate with GWG and the valuation firms in completing such valuations. (Ab) In furtherance of the number Company’s undertaking in Section 8.4(a) above, the Company agrees to enter into such arrangements with such of Warrant Shares its existing securityholders as it deems necessary and appropriate, in its sole discretion, to preclude any dilution to its common unitholders (including, as of the Closing, GWG) that otherwise may result from the Holder anticipated make-whole obligation in Section 8.4(a) . (c) In connection therewith, GWG irrevocably covenants and agrees, as of the date of Closing, as the then majority holder of the Company’s Common Units, to sell in such Anticipated Sale, multiplied by (B) waive any restriction the Exercise Price Company may have under any contractual provision relating to the partnership interests/units of the Company or its Subsidiaries that would have been payable for such Warrant Sharesotherwise prevent or limit the conversion of outstanding partnership interests/units, and (ii) at or any of them, into Common Units to satisfy the option Company’s obligations under this Section 8.4 or any other transaction or series of the Holder, either reinstate the portion transactions arising out of this Warrant and equivalent number of Warrant Shares in respect of which such Delivery Failure occurred or deliver relating to the Holder transactions contemplated hereunder; provided, however, that this irrevocable waiver and consent shall apply only to conversions effected in compliance with the number of Warrant Shares that would have been issued had the Company timely complied with its obligations hereunder to issue such Warrant Shares upon such exercise. The Holder shall provide the Company written notice indicating the amounts payable to the Holder, together with applicable confirmations and other evidence reasonably requested by the Company. Nothing herein shall limit the Holder’s right to receive Additional Compensation pursuant to Section 12 or pursue any other remedies available to it hereunder at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to any Delivery FailureAmended & Restated Limited Partnership Agreement.