Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, an amount of $131,303,723 (the “Break-up Fee”). (b) As security for Buyer’s obligations pursuant to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewith. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Fee.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all In recognition of the conditions to Closingefforts, expenses and other than opportunities foregone by Buyer while structuring and pursuing the conditions in Section 8.6(b)Merger, have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer Company shall pay Sellerto Buyer a break-up fee equal to $1,600,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay Buyer the Break-Up Fee within three two (32) Business Days following after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, as liquidated damagesCompany enters into any agreement to consummate, or consummates, an amount Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of $131,303,723 (the “foregoing Acquisition Proposal), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Break-up Up Fee, provided, that for purposes of this Section 7.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”). (b) As security for Company and Buyer each agree that the agreements contained in this Section 7.02 and in Section 7.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither Company nor Buyer would have entered into this Agreement; accordingly, if Company fails to promptly pay any amounts due under this Section 7.02 or Company or Buyer fails to promptly pay any amounts due under Section 7.03, Company or Buyer’s obligations pursuant , as applicable, shall pay interest on such amounts from the date payment of such amounts were due to Section 9.3(athe date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), Section 9.4(b) or Section 9.4(c), designated therein as the prime rate on the Effective Datedate such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer has provided the Break-up Fee Security or Company, as applicable, (including legal fees and expenses) reasonably incurred in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellationconnection with such suit. (c) Notwithstanding anything to the contrary set forth in this Agreement, in the event parties agree that if Company pays or causes to be paid to Buyer is required or to pay Buyer Bank the Break-up Up Fee pursuant to in accordance with Section 9.3(a7.02(a), neither Company nor Company Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Company Bank) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and will have any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages further obligations or liabilities suffered to Buyer or incurred as a result of or under Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and the other Transaction Documentspayment of such amounts shall be Buyer’s sole and exclusive remedy against Company, including the failure of the Closing to occurCompany Bank, and Buyer shall have no further liability their respective Affiliates, Representatives or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or successors in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewithinterest. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Fee.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all In recognition of the conditions to Closingefforts, expenses and other than opportunities foregone by Buyer while structuring and pursuing the conditions in Section 8.6(b)Merger, have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer Company shall pay Sellerto Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer the Break-Up Fee within three two (32) Business Days following after receipt of Buyer’s notification of such termination; and (ii) after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c), an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, as liquidated damagesCompany enters into any agreement to consummate, or consummates, an amount Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of $131,303,723 (the “foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-up Up Fee, provided, that for purposes of this Section 8.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”). (b) As security for Buyer’s obligations pursuant Company and Buyer each agree that the agreements contained in this Section 8.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 9.3(a8.02, Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), Section 9.4(b) or Section 9.4(c), designated therein as the prime rate on the Effective Datedate such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer has provided the Break-up Fee Security (including legal fees and expenses) reasonably incurred in the amount equal connection with such suit to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellationenforce such payment. (c) Notwithstanding anything to the contrary set forth in this Agreement, in the event parties agree that if Company pays or causes to be paid to Buyer is required to pay the Break-up Up Fee pursuant to in accordance with Section 9.3(a8.02(a), neither Company nor Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Bank) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and will have any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages further obligations or liabilities suffered or incurred as a result of or under to Buyer with respect to this Agreement or the transactions contemplated by this Agreement and the other Transaction Documentspayment of such amounts shall be Buyer’s sole and exclusive remedy against Company, including the failure of the Closing to occurBank, and Buyer shall have no further liability their respective Affiliates, Representatives or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or successors in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewithinterest. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Fee.

Break-Up Fee. (a) If In the event that this Agreement is terminated (i) by Seller the Buyer or the Sellers pursuant to Section 9.1(b7.02(b) and at the time of such termination (A) the condition set forth in Section 6.01(a) is not then satisfied as a result of a Restraint related to any Antitrust Law or (B) the condition set forth in Section 9.1(d6.01(b) is not then satisfied or (ii) by Seller the Buyer or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated Sellers pursuant to Section 9.1(c7.02(c) or Section 9.1(f) as in connection with a result of Buyer failing Restraint related to satisfy any Antitrust Law, then the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer Sellers shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, be entitled to receive an amount of equal to $131,303,723 58,750,000 (the “Break-up Up Fee”). (b) As security for Buyer’s obligations pursuant to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security Escrow Account in accordance with Section 2.04(b)(ii) (it being understood that in no event shall the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to Buyer be delivered to Buyer the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Up Fee on more than one occasion). In the event that the Sellers receive full payment of the Break-Up Fee pursuant to Section 9.3(aSections 7.04(a)(i) and Buyer pays or (ii) under circumstances where the full Break-up FeeUp Fee is payable, payment the receipt of the Break-Up Fee and such fee expenses shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, (whether in equity or at law, in equity, in contract, in tort or otherwise) for any and all losses or damages suffered or incurred by the Sellers or any Seller Related Party against the Buyer or any Buyer Related Party in connection with this Agreement (and the actual or purported termination hereof) and the transactions contemplated hereby (and the abandonment thereof), and or any matter forming the basis for such termination, other than with respect to any Intentional Breach; provided, that nothing in such event, Seller this Section 7.04(a) shall not bring or permit any limit the obligations of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from the Buyer or any of its Affiliates in connection therewithunder the Confidentiality Agreement. (db) The provision for payment Each of liquidated damages the Parties acknowledges that the agreements contained in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 7.04 are an integral part of the transactions contemplated by this Agreement Agreement, and are intended that without these agreements, the other Parties would not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with enter into this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in All payments under this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results 7.04 shall be made by wire transfer of immediately available funds to an account designated in a judgment or similar award against Buyer for writing by the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceedingSellers. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Fee.

Break-Up Fee. (a) If this Agreement is terminated terminated, and, if, and only if: (i) by Seller the General Partner has withdrawn the GP Recommendation (except as a result of a Purchaser Default); (ii) Seller, the General Partner or WHLP shall have terminated or caused to be terminated this Agreement pursuant to Section 9.1(b) or Section 9.1(d) 7.11; or (iiiii) by Seller or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and (x) this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing Seller's failure or inability to satisfy obtain the conditions in Section 8.6(b)Seller Approval prior to the Seller Approval Date, then, in any (y) within six (6) months after such case, and notwithstanding any other provision of this Agreement Buyer shall pay termination Seller, the General Partner or WHLP shall have executed an agreement relating to a transaction contemplated by wire transfer of immediately available funds within three (3) Business Days following any Acquisition Proposal made by any Person or Affiliate thereof who had disclosed to Seller, WHLP or the General Partner any Acquisition Proposal made after the date of termination, as liquidated damages, an amount the Letter of $131,303,723 (the “Break-up Fee”). (b) As security for Buyer’s obligations pursuant Intent but prior to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewith. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a("a NEW TRANSACTION AGREEMENT"), and (z) Seller, the actual damages General Partner or WHLP shall have entered into a binding definitive agreement (a "DEFINITIVE AGREEMENT") with the other party to be incurred by such New Transaction Agreement as to which Definitive Agreement all contingencies shall have been satisfied or waived (other than customary closing conditions relating to Seller's performance) within twelve (12) months after such termination, then Seller can reasonably be expected shall pay to approximate Purchaser a fee in the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge Six Million Two Hundred and agree that Fifty Thousand Dollars ($6,250,000.00) (the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty"BREAK-UP FEE"); provided, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a)however, in no event shall (i) Buyer’s aggregate liability arising out the sum of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up FeeOut of Pocket Expenses reimbursed to Purchaser pursuant to Section 12.3(b) exceed an aggregate amount of Eight Million Two Hundred and Fifty Thousand Dollars ($8,250,000.00) ("Fee Cap").

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision Upon execution of this Agreement Buyer Agreement, Purchaser shall pay Seller, by wire transfer of deposit immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, in an amount of equal to One Hundred Thousand Dollars ($131,303,723 100,000.00) (the “Break-up "Break Up Fee”)") in an escrow account at Purchaser, such Break Up Fee to be subject to release as provided herein. (b) As security The Break Up Fee shall be retained by Purchaser if this Agreement is terminated: (i) by Purchaser and Seller in accordance with Section 10.1(a), (ii) by Purchaser in accordance with Section 10.1(b), (iii) by Purchaser in accordance with Section 10.1(d), (iv) by Purchaser in accordance with Section 10.1(e)(ii); provided, however, that for Buyer’s obligations pursuant to purposes of this Section 9.3(a2.2(b)(iv), Section 9.4(b) Purchaser shall only be entitled to retain the Break Up Fee if the denial or Section 9.4(c)revocation of any Regulatory Approval is the result of an action by or the condition of Seller and, on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Feeotherwise, Seller shall be entitled to draw from receive the Break-up Break Up Fee, (v) by Purchaser in accordance with Section 10.1(f)(ii); provided, however, that for purposes of this Section 2.2(b)(v), Purchaser shall only be entitled to retain the Break Up Fee Security if the unpaid portion withdrawal by Purchaser of its application for Regulatory Approval is the result of communication by one of the Break-up Fee. At applicable governmental and regulatory authorities whose consents, approvals and authorizations are required in order for Purchaser to consummate the Closingtransactions contemplated herein of its unwillingness to grant Regulatory Approval on or before the Target Date as a result of an action by or the condition of Seller and, otherwise, Seller shall deliver or cause be entitled to be delivered to Buyer receive the Break-up Fee Security for cancellationBreak Up Fee, (vi) by Purchaser in accordance with Section 10.1(g). (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up The Break Up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole paid and exclusive remedy of distributed to Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under if this Agreement or the transactions contemplated is terminated: (i) by this Agreement and the other Transaction DocumentsSeller in accordance with Section 10.1(b), (ii) by Seller in accordance with Section 10.1(c), (iii) by Seller in accordance with Section 10.1(d), (iv) by Seller in accordance with Section 10.1(e)(i), including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to or (v) by Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewithaccordance with Section 10.1(f). (d) If the Closing occurs on or before the Termination Date, the Break Up Fee shall be credited towards the Aggregate Asset Value due to Seller from Purchaser. The provision for Break Up Fee shall be in addition to all other rights, claims and causes of action Seller may have at law or in equity. Purchaser expressly agrees that the amount of the Break Up Fee is fair and reasonable and does not constitute a penalty or liquidated damages. In the event Seller is entitled to the Break Up Fee in accordance with the terms of this Section 2.2 and Purchaser unreasonably delays distribution of the Break Up Fee to Seller or fails to distribute the Break Up Fee to Seller, Purchaser shall, in addition to payment of liquidated damages in this Section 9.3 has been included becausethe Break Up Fee, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by reimburse Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated for all damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In additionlosses, the Parties acknowledge and agree thatcosts, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs fees and expenses (including reasonable attorneys’ fees and expenses of enforcement' fees) incurred by Seller in connection with such proceeding. (e) For obtaining the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Break Up Fee.

Break-Up Fee. (a) If (A) Purchaser terminates this Agreement is terminated (i) by Seller pursuant to Section 9.1(b10.1(b)(i); Section 10.1(b)(ii) or Section 9.1(d10.1(b)(iii) or (iiB) by any Seller or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and Party terminates this Agreement is terminated pursuant to Section 9.1(c10.1(a)(i) or Section 9.1(f10.1(a)(iv) as a result (provided that at the time of Buyer failing such termination, Purchaser had the right to satisfy the conditions in terminate this Agreement pursuant to Section 8.6(b10.1(b)(ii) or Section 10.1(b)(i)), then, in any such case, and notwithstanding any other provision of this Agreement Buyer then Seller Parent shall pay Seller, by wire transfer of immediately available funds within three or cause to be paid to Purchaser not later than two (32) Business Days following such termination, an amount in cash equal to the product of three and one-half percent (3.5%) multiplied by the Purchase Price (as though calculated on the date of such termination, as liquidated damages, an amount of $131,303,723 ) (the “Break-up Fee”). (b) As security for Buyer’s obligations If any Seller Party terminates this Agreement pursuant to Section 9.3(a10.1(c)(iv), then Seller Parent shall pay or cause to be paid to Purchaser prior to or substantially concurrently with such termination, the Break-up Fee. (c) If (i) any Seller Party or Purchaser terminates this Agreement pursuant to Section 9.4(b10.1(a)(i) and provided that the Stockholder Approval shall not have been obtained at the Special Meeting (including any adjournment or postponement thereof) or (ii) any Seller Party or Purchaser terminates this Agreement pursuant to Section 9.4(c10.1(a)(iv), and in each case of the preceding clauses (i) and (ii), (A) prior to the termination of this Agreement (in the case of a termination pursuant to Section 10.1(a)(i)) or prior to the Special Meeting (in the case of a termination pursuant to Section 10.1(a)(iv)), there shall have been publicly disclosed or announced (and not withdrawn) a bona fide written Competing Proposal, and (B) within twelve (12) months of the termination of this Agreement, any Seller Party enters into an Acquisition Agreement with respect to any Competing Proposal (which is subsequently consummated) or shall have consummated any Competing Proposal (which, in each case, need not be the same Competing Proposal that was made, disclosed or communicated prior to termination of this Agreement), then, on and subject in all respects to the Effective Dateconsummation of such Competing Proposal, Buyer has provided Seller shall pay or cause to be paid the Break-up Fee Security to Purchaser promptly following consummation of such Competing Proposal. For purposes of this Section 10.3(c), notwithstanding anything in this Agreement that may be deemed to the contrary, the term “Competing Proposal” shall have the meaning assigned to such term, except that the references to “more than 20%” in the amount equal definition of “Competing Proposal” shall be deemed to $131,303,723. If Buyer shall fail be references to pay to 50% instead. (d) The Seller when due Parties acknowledge and agree that the full amount agreements contained in this Section 10.3 are an integral part of the Transactions and are not a penalty, and that, without these agreements, Purchaser would not enter into this Agreement. (e) Any payment of the Break-up Fee, Fee by or on behalf of Seller Parent shall be entitled made to draw from Purchaser by wire transfer to the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause account set forth on Exhibit 3.2 to be delivered to Buyer the Break-up Fee Security for cancellationthis Agreement. (cf) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewith. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both will constitute liquidated damages and from and after the payment of the Break-up Fee and no Seller Party will have any further liability of any kind for any reason in connection with this Agreement or the Regulatory termination contemplated hereby other than as provided under this Section. In no event will Purchaser be entitled to the Break-up FeeFee on more than one occasion.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all of the conditions to Closing, Purchaser’s obligation to consummate the Closing (as set forth in Section 7.1) are satisfied (other than the those conditions in Section 8.6(b), have been that can only be satisfied or at Closing and that are capable of being satisfied on at Closing) and the Closing Date does not occur (other than through the failure of Seller or the Company to comply with their obligations under this Agreement) within five (5) Business Days of Purchaser’s receipt of written notice from Seller that Seller and this Agreement is terminated pursuant the Company are ready to Section 9.1(cconsummate the Closing, at Seller’s election and in Seller’s sole discretion, Seller shall have the right to elect (1) or Section 9.1(f) to obtain specific performance as a result of Buyer failing to satisfy the conditions provided for in Section 8.6(b)10.12 of the Agreement and to obtain any additional relief provided for by law or equity, then, other than monetary damages; or (2) to require Purchaser to pay to the Company in any such case, and notwithstanding any other provision of this Agreement Buyer shall pay Seller, by wire transfer of immediately available funds within three on such fifth (35th) Business Days following the date of termination, as liquidated damages, Day an amount of equal to Seventy Five Million Dollars ($131,303,723 75,000,000) (the “Reverse Break-up Fee”). . Seller shall notify Purchaser of its remedy election on said (b5th) As security for Buyer’s obligations pursuant Business Day. If Seller elects to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on receive the Effective Date, Buyer has provided the Reverse Break-up Fee Security and it is paid in full, and only in such event, then (i) neither Purchaser nor any of its directors, officers, employees, partners, managers, members, shareholders or Affiliates (each a “Purchaser Affiliate”), shall be subject to (nor shall Seller, the amount equal Company or their respective Affiliates seek to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount recover) monetary damages in excess of the Reverse Break-up Fee, and (ii) Seller, the Company and their respective Affiliates shall be precluded from any other remedy against Purchaser or any Purchaser Affiliate, at law or in equity or otherwise, and none of Seller, the Company and their respective Affiliates shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Purchaser or any Purchaser Affiliate in connection with this Agreement and the transaction contemplated hereby. If Seller elects the specific performance remedy, but a court determines that Seller is not entitled to specific performance, then Seller shall be entitled to draw from awarded the Break-up Fee Security the unpaid portion of the Reverse Break-up Fee. At The parties hereto agree that the Closing, monetary damages that Seller shall deliver or cause to will suffer as the result of the Closing not taking place cannot be delivered to Buyer measured with accuracy and that monetary damages alone will not make Seller whole. The parties hereto further agree that the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Reverse Break-up Fee, payment of such fee shall be the sole however, represents a fair and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure reasonable estimation of the Closing to occur, and Buyer shall have no further liability or obligation minimum amount of monetary damages for breach of contract that would result to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewith. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the a termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected pursuant to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of under the transactions contemplated by circumstances described in this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination last paragraph of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding9.3. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Fee.

Break-Up Fee. Upon execution of this Agreement, Buyer shall deposit into the Escrow Account the sum of $12,000,000.00 (the “Break-Up Fee”). In the event Closing occurs, the Break-Up Fee shall be credited against the Purchase Price at Closing. (a) If (i) (A) all conditions precedent to the obligations of Buyer set forth in Article IX (other than the condition set forth in Section 9.4) and (B) Buyer has fully complied with the covenants in Section 8.10 and (ii) the transactions contemplated by this Agreement are not consummated on or before the Outside Date (or, if applicable, such other date Buyer and Seller may agree upon in writing pursuant to Section 11.1) due solely to Buyer’s condition in Section 9.4 not being met, then, in such event, Seller shall have the right to terminate this Agreement and shall be entitled to promptly receive the Break-Up Fee from the Escrow Agent, as its sole and exclusive remedy, free of any claims by Buyer or any other Person. (b) If this Agreement is terminated by the mutual written agreement of Buyer and Seller, or if the Closing does not occur on or before the Outside Date for any reason other than as set forth in Section 3.2(a), then Buyer shall be entitled to promptly receive the Break-Up Fee from the Escrow Agent, free of any claims by Seller with respect thereto; provided, that Buyer (i) by Seller pursuant has not negligently or willfully failed to Section 9.1(b) perform or Section 9.1(d) observe any of its agreements or covenants contained herein which are to be performed or observed at or prior to Closing or (ii) by is not in material breach of its representations and warranties hereunder. Buyer and Seller or Buyer if all of shall thereupon have the conditions to Closing, other than the conditions rights and obligations set forth in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, an amount of $131,303,723 (the “Break-up Fee”)15.2. (b) As security for Buyer’s obligations pursuant to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewith. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Fee.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d) or (ii) by Seller or Buyer if all In recognition of the conditions to Closingefforts, expenses and other than opportunities foregone by Buyer while structuring and pursuing the conditions in Section 8.6(b)Merger, have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision of this Agreement Buyer Company shall pay Sellerto Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer the Break-Up Fee within three two (32) Business Days following after receipt of Buyer’s notification of such termination; and (ii) after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c), an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, as liquidated damagesCompany enters into any agreement to consummate, or consummates, an amount Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of $131,303,723 (the “foregoing Acquisition Proposal)), then Company shall, on the earlier of the date it enters into such agreement or the date of consummation of such transaction, pay Buyer the Break-up Up Fee, provided, that for purposes of this Section 8.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”). (b) As security for Buyer’s obligations pursuant Company and Buyer each agree that the agreements contained in this Section 8.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 9.3(a8.02, Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), Section 9.4(b) or Section 9.4(c), designated therein as the prime rate on the Effective Datedate such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer has provided the Break-up Fee Security (including legal fees and expenses) reasonably incurred in the amount equal connection with such suit to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellationenforce such payment. (c) Notwithstanding anything to the contrary set forth in this Agreement, in the event parties agree that if Company pays or causes to be paid to Buyer is required to pay the Break-up Up Fee pursuant to in accordance with Section 9.3(a8.02(a), neither Company nor Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Bank) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and will have any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages further obligations or liabilities suffered or incurred as a result of or under to Buyer with respect to this Agreement or the {Clients/1521/00383953.DOCX/7 }62 transactions contemplated by this Agreement and the other Transaction Documentspayment of such amounts shall be Buyer’s sole and exclusive remedy against Company, including the failure of the Closing to occurBank, and Buyer shall have no further liability their respective Affiliates, Representatives or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or successors in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewithinterest. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Fee.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b) or Section 9.1(d(e) or (ii) by Seller and/or Buyer pursuant to Section 9.1(c) or Buyer if all of (f) solely because the conditions to Closing, other than the conditions condition in Section 8.6(b7.8 or Section 8.6 has not been or cannot be satisfied, then, in any such case, in lieu of all other Claims and remedies that might otherwise be available to Seller with respect thereto, including elsewhere hereunder and notwithstanding any other provision of this Agreement: (i) (A) if Buyer has breached its obligation to pay the Purchase Price or its obligations under Section 6.1(a) or 6.1(c), have been satisfied (B) if this Agreement is terminated pursuant to Section 9.1(e) or are capable of being satisfied on the Closing Date and (C) if this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f(f) as a result of Buyer failing to satisfy solely because the conditions condition in Section 8.6(b)7.8 or Section 8.6 has not been or cannot be satisfied, then, then in any such case, and notwithstanding any other provision of this Agreement . Buyer shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, an amount 5% of the Base Purchase Price; or (ii) if Buyer has materially breached any representation, warranty, covenant, agreement or obligation hereunder (other than those referred to in Section 9.3(a)(i)), then Buyer shall pay Seller, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, Seller’s actual and reasonable out-of-pocket fees (including reasonable attorney’s fees and regulatory filing fees) and expenses incurred in connection with this Agreement, subject to a maximum of $131,303,723 (the “Break-up Fee”)5,000,000. (b) As security for Buyer’s obligations pursuant to Section 9.3(a), Section 9.4(b(i) or Section 9.4(c)on October 11, on the Effective Date2006, Buyer has provided the shall provide Break-up Fee Security in the amount equal to of $131,303,723. If 25,000,000, (ii) on or before October 16, 2006, Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the provide Break-up Fee Security in the unpaid portion amount of the Break$44,000,000 (reduced dollar for dollar by any amounts required to be paid to tolling counterparties to secure a break-up Fee. At the Closingfee on contingent ▇▇▇▇▇▇), Seller and (iii) on or before October 31, 2006, Buyer shall deliver or cause to be delivered to Buyer the provide Break-up Fee Security for cancellationin an amount equal to the excess of (x) 5% of the Base Purchase Price over (y) the sum of the amounts actually provided pursuant to clauses (i) and (ii) of this Section 9.3(b). (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewith. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a)a breach by Buyer, the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee amount of liquidated damages provided for herein and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount of the Break-up Fee or (ii) Seller be entitled to collect both the Break-up Fee and the Regulatory Break-up Fee.

Break-Up Fee. (a) If this Agreement is terminated terminated, and, if, and only if: (i) by Seller the General Partner has withdrawn the GP Recommendation (except as a result of a Purchaser Default); (ii) Seller, the General Partner or WHLP shall have terminated or caused to be terminated this Agreement pursuant to Section 9.1(b) or Section 9.1(d) 8.11(c); or (iiiii)(x) by Seller or Buyer if all of the conditions to Closing, other than the conditions in Section 8.6(b), have been satisfied or are capable of being satisfied on the Closing Date and this Agreement is terminated pursuant to the terms of Section 9.1(c4.1, (y) within six (6) months after such termination Seller, the General Partner or Section 9.1(f) as WHLP shall have executed an agreement relating to a result transaction contemplated by a Superior Acquisition Proposal made by any Person or Affiliate thereof who had disclosed to Seller, WHLP or the General Partner a Superior Acquisition Proposal made after the date of Buyer failing the Access Agreement but prior to satisfy the conditions in Section 8.6(b), then, in any such case, and notwithstanding any other provision termination of this Agreement Buyer (“New Transaction Agreement”), and (z) Seller, the General Partner or WHLP shall have entered into a binding definitive agreement for such contemplated transaction (“Definitive Agreement”) with the other party to such New Transaction Agreement as to which Definitive Agreement all contingencies shall have been satisfied or waived (other than customary closing conditions relating to Seller’s performance) within twelve (12) months after such termination, then Seller shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following to Purchaser a fee in the date of termination, as liquidated damages, an amount of $131,303,723 3,500,000 (the “Break-up Up Fee”). (b) As security for Buyer’s obligations pursuant to Section 9.3(a); provided, Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller and its Affiliates against Buyer and any of its former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to or arising out of this Agreement or the failure of the transactions contemplated by this Agreement to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewith. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer shall fail to pay the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a)however, in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount sum of the Break-up Up Fee or and the Out of Pocket Expenses reimbursed to Purchaser pursuant to this Section 13.3 exceed the aggregate amount of $4,627,500 (ii) the “Fee Cap”), provided that Purchaser provides Seller be entitled with a written general release of Seller’s liabilities and obligations with respect to collect both this Agreement and the Hotel upon Seller’s payment of the Break-up Fee and the Regulatory Break-up Up Fee.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller Sellers and/or the Company in breach of SECTION 6.9 or by Buyer pursuant to Section 9.1(bSECTION 9.2(c) or Section 9.1(d) or (ii) because of a breach by Seller or Buyer if all either of the conditions to Closing, other than Paxsons and/or the conditions in Section 8.6(b), have been satisfied or are capable Company of being satisfied on the Closing Date and this Agreement is terminated pursuant to Section 9.1(c) or Section 9.1(f) as a result of Buyer failing to satisfy the conditions in Section 8.6(b)SECTION 6.9, then, in any such case, and notwithstanding any other provision of this Agreement Buyer shall pay Seller, by wire transfer of immediately available funds within three (3) Business Days following the date of termination, as liquidated damages, an amount of $131,303,723 (the “Break-up Fee”). (b) As security for Buyer’s obligations pursuant to Section 9.3(a), Section 9.4(b) or Section 9.4(c), on the Effective Date, Buyer has provided the Break-up Fee Security in the amount equal to $131,303,723. If Buyer shall fail to pay to Seller when due the full amount of the Break-up Fee, Seller shall be entitled to draw from the Break-up Fee Security the unpaid portion of the Break-up Fee. At the Closing, Seller shall deliver or cause to be delivered to Buyer the Break-up Fee Security for cancellation. (c) Notwithstanding anything to the contrary in this Agreement, in the event that Buyer is required to pay the Break-up Fee pursuant to Section 9.3(a) and Buyer pays the full Break-up Fee, payment of such fee shall be the sole and exclusive remedy of Seller Buyer for such breaches, the Company and its Affiliates against the Paxsons, jointly and severally, shall immediately (but in no event later than twenty-four (24) hours following any such termination) pay to Buyer, in cash, the sum of Two Million Two Hundred Seventy-Five Thousand Dollars ($2,275,000) (such aggregate amount being the "BREAK-UP FEE"); provided that if the Company and Sellers shall fail to make the payment of the Break-Up Fee when and as required, Buyer and any shall have the right to pursue all of its former, current remedies in law or in equity to recover the amount of such Break-Up Fee from the Company and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns the Paxsons. If this Agreement is properly terminated pursuant to SECTION 9 for any lossesreason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, damages or liabilities suffered or incurred then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(a) shall terminate. (b) If this Agreement is terminated by Sellers and/or the Company in breach of SECTION 6.9 as a result of or under this Agreement or the transactions contemplated by this Agreement and the other Transaction Documents, including the failure of the Closing to occur, and Buyer shall have no further liability or obligation to Seller or its Affiliates relating to any act of PNI or arising out by Buyer pursuant to SECTION 9.2(c) because of this Agreement or a breach by PNI of SECTION 6.9, then, as the failure sole and exclusive remedy of the transactions contemplated by this Agreement Buyer for such breaches, PNI shall immediately (but in no event later than twenty-four (24) hours following any such termination) pay to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith or therewith, whether in equity or at lawBuyer, in contractcash, in tort or otherwise, and in such event, Seller shall not bring or permit any of its Affiliates an amount equal to bring any action, suit or other proceeding to seek to recover any money damages or obtain any equitable relief from Buyer or any of its Affiliates in connection therewith. (d) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of the termination of this Agreement as described in Section 9.3(a), the actual damages to be incurred by Seller can reasonably be expected to approximate the Break-up Fee and because the actual amount of such damages would be difficult Up Fee; provided that if not impossible to measure accurately. The Parties further expressly acknowledge and agree that the liquidated damages in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and are intended not as a penalty, but as full liquidated damages, in the event of Seller’s termination of this Agreement in the manner contemplated in Section 9.3(a) and as compensation for all of Seller’s losses and other expenses associated with this Agreement. In addition, the Parties acknowledge and agree that, in the event Buyer PNI shall fail to pay make the Break-up Fee specified in this Section 9.3 when due, and Seller (or Buyer) commences a proceeding which results in a judgment or similar award against Buyer for the Break-up Fee, then Buyer shall also pay to Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses of enforcement) in connection with such proceeding. (e) For the avoidance of doubt, notwithstanding anything else in this Agreement, but subject to Section 10.8(a), in no event shall (i) Buyer’s aggregate liability arising out of or related to this Agreement, whether relating to breach of a representation or warranty, covenant, agreement or obligation in this Agreement and whether based in tort, contract, strict liability or other Laws or otherwise, exceed the amount payment of the Break-up Up Fee when and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from PNI. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(b) shall terminate. (iic) Seller Buyer shall not be entitled to collect both the receive payment of an amount equal to more than one Break-up Up Fee and the Regulatory Break-up Feeunder this SECTION 9.5.