Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. 15.5.1 In the event that this Agreement is terminated by the Company based upon a willful refusal by Lithia to complete this Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 200% of all amounts paid or payable to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For purposes of this Section 15.5, a willful refusal by any party to complete this Agreement or any Other Reorganization Agreement means either such party's refusal to consummate the transactions contemplated by this Agreement or any Other Reorganization Agreement even though all of the conditions to its obligations to do so have been fulfilled or such party's failure to take any action within its reasonable control that would result in the fulfillment of a condition to such obligations. 15.5.2 In the event that either party terminates this Agreement for reason of the non-fulfillment of the Designated Condition, Lithia shall pay to the Company a break-up fee equal to the sum of (i) $150,000 multiplied by a fraction, the numerator of which is the Net Adjusted Pretax Income of the Company for 1998 and the denominator of which is the aggregate Net Adjusted Pretax Income of all members of the ▇▇▇▇▇▇▇▇ Group for 1998 and (ii) 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For this purpose, the Designated Condition means the failure of Lithia to have received approvals from any manufacturer represented by the Company or another member of the ▇▇▇▇▇▇▇▇ Group. 15.5.3 In the event that either party terminates this Agreement for any reason other than (i) those set forth in Sections 15.5.1 or 15.5.2 or (ii) a willful refusal by the Company or any of the other members of the ▇▇▇▇▇▇▇▇ Group or their Shareholders to complete the Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. 15.5.4 The break-up fees payable under this Section 15.5 shall be due at the time this Agreement is terminated. Should the transactions contemplated by this Agreement or the Other Reorganization Agreements fail to close for any reason other than a willful refusal by the Company or any other member of the ▇▇▇▇▇▇▇▇ Group to complete this Agreement or any other Reorganization Agreement, it is acknowledged that the Company and the Shareholders would suffer damages; however, the precise amount of such damages would be difficult to establish. The break-up fees provided in this Section represent a good-faith estimate by the parties of the damage that the Company and Shareholders would incur. Lithia acknowledges that the break-up fees payable under Section 15.5.2 and 15.5.3 are reasonable and appropriate, even though Lithia may not have breached any representation, warranty or covenant contained herein in the circumstances described in those sections. To the extent of those break-up fees, Lithia has knowingly accepted the risk of the nonfulfillment of the conditions to its obligations and the obligations of the Company and the Shareholders in the circumstances described in Sections 15.5.2 and 15.5.3 in order to induce the Company and the other members of the ▇▇▇▇▇▇▇▇ Group to enter into this Agreement and the Other Reorganization Agreements and risk the adverse effect on their market values that will occur if those agreements are not completed. Lithia expressly agrees that the break-up fees contemplated by this Section 15.5 shall be due even though the Company, the Shareholders or any other member of the ▇▇▇▇▇▇▇▇ Group or any shareholder thereof may have breached any representation, warranty or covenant of this Agreement or the Other Reorganization Agreements, with the sole exception of a willful refusal by any such party to complete this Agreement or any of the Other Reorganization Agreements. The right to collect break-up fees pursuant to this Section 15.5 shall be the exclusive remedy of the Company and the Shareholders in the event of a termination of this Agreement in the circumstances described in Section 15.5.1 or 15.5.

Break-Up Fee. 15.5.1 In the event that this Agreement is terminated by the Company based upon a willful refusal by Lithia to complete this Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 200% of all amounts paid or payable to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For purposes of this Section 15.5, a willful refusal by any party to complete this Agreement or any Other Reorganization Agreement means either such party's refusal to consummate the transactions contemplated by this Agreement or any Other Reorganization Agreement even though all of the conditions to its obligations to do so have been fulfilled or such party's failure to take any action within its reasonable control that would result in the fulfillment of a condition to such obligations. 15.5.2 In the event that either party terminates this Agreement for reason of the non-fulfillment of the Designated Condition, Lithia shall pay to the Company a break-up fee equal to the sum of (i) $150,000 multiplied by a fraction, the numerator of which is the Net Adjusted Pretax Income of the Company for 1998 and the denominator of which is the aggregate Net Adjusted Pretax Income of all members of the ▇▇▇▇▇▇▇▇ Group for 1998 and (ii) 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For this purpose, the Designated Condition means the failure of Lithia to have received approvals from any manufacturer represented by the Company or another member of the ▇▇▇▇▇▇▇▇ Group. 15.5.3 In the event that either party terminates this Agreement for any reason other than (i) those set forth in Sections 15.5.1 or 15.5.2 or (ii) a willful refusal by the Company or any of the other members of the ▇▇▇▇▇▇▇▇ Group or their Shareholders to complete the Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. 15.5.4 The break-up fees payable under this Section 15.5 shall be due at the time this Agreement is terminated. Should the transactions contemplated by this Agreement or the Other Reorganization Agreements fail to close for any reason other than a willful refusal by the Company or any other member of the ▇▇▇▇▇▇▇▇ Group to complete this Agreement or any other Reorganization Agreement, it is acknowledged that the Company and the Shareholders would suffer damages; however, the precise amount of such damages would be difficult to establish. The break-up fees provided in this Section represent a good-faith estimate by the parties of the damage that the Company and Shareholders would incur. Lithia acknowledges that the break-up fees payable under Section 15.5.2 and 15.5.3 are reasonable and appropriate, even though Lithia may not have breached any representation, warranty or covenant contained herein in the circumstances described in those sections. To the extent of those break-up fees, Lithia has knowingly accepted the risk of the nonfulfillment of the conditions to its obligations and the obligations of the Company and the Shareholders in the circumstances described in Sections 15.5.2 and 15.5.3 in order to induce the Company and the other members of the ▇▇▇▇▇▇▇▇ Group to enter into this Agreement and the Other Reorganization Agreements and risk the adverse effect on their market values that will occur if those agreements are not completed. Lithia expressly agrees that the break-up fees contemplated by this Section 15.5 shall be due even though the Company, the Shareholders or any other member of the ▇▇▇▇▇▇▇▇ Group or any shareholder thereof may have breached any representation, warranty or covenant of this Agreement or the Other Reorganization Agreements, with the sole exception of a willful refusal by any such party to complete this Agreement or any of the Other Reorganization Agreements. The right to collect break-up fees pursuant to this Section 15.5 shall be the exclusive remedy of the Company and the Shareholders in the event of a termination of this Agreement in the circumstances described in Section 15.5.1 ERROR! REFERENCE SOURCE NOT FOUND. or 15.5.

Break-Up Fee. 15.5.1 In the event that this Agreement is terminated by the Company based upon a willful refusal by Lithia to complete this Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 200% of all amounts paid or payable to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For purposes of this Section 15.5, a willful refusal by any party to complete this Agreement or any Other Reorganization Agreement means either such party's refusal to consummate the transactions contemplated by this Agreement or any Other Reorganization Agreement even though all of the conditions to its obligations to do so have been fulfilled or such party's failure to take any action within its reasonable control that would result in the fulfillment of a condition to such obligations. 15.5.2 In the event that either party terminates this Agreement for reason of the non-fulfillment of the Designated Condition, Lithia shall pay to the Company a break-up fee equal to the sum of (i) $150,000 multiplied by a fraction, the numerator of which is the Net Adjusted Pretax Income of the Company for 1998 and the denominator of which is the aggregate Net Adjusted Pretax Income of all members of the ▇▇▇▇▇▇▇▇ Group for 1998 and (ii) 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For this purpose, the Designated Condition means the failure of Lithia to have received approvals from any manufacturer represented by the Company or another member of the ▇▇▇▇▇▇▇▇ Group. 15.5.3 In the event that either party terminates this Agreement for any reason other than (i) those set forth in Sections 15.5.1 or 15.5.2 or (ii) a willful refusal by the Company or any of the other members of the ▇▇▇▇▇▇▇▇ Group or their Shareholders to complete the Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. 15.5.4 The break-up fees payable under this Section 15.5 shall be due at the time this Agreement is terminated. Should the transactions contemplated by this Agreement or the Other Reorganization Agreements fail to close for any reason other than a willful refusal by the Company or any other member of the ▇▇▇▇▇▇▇▇ Group to complete this Agreement or any other Reorganization Agreement, it is acknowledged that the Company and the Shareholders would suffer damages; however, the precise amount of such damages would be difficult to establish. The break-up fees provided in this Section represent a good-faith estimate by the parties of the damage that the Company and Shareholders would incur. Lithia acknowledges that the break-up fees payable under Section 15.5.2 and 15.5.3 are reasonable and appropriate, even though Lithia may not have breached any representation, warranty or covenant contained herein in the circumstances described in those sections. To the extent of those break-up fees, Lithia has knowingly accepted the risk of the nonfulfillment of the conditions to its obligations and the obligations of the Company and the Shareholders in the circumstances described in Sections 15.5.2 and 15.5.3 in order to induce the Company and the other members of the ▇▇▇▇▇▇▇▇ Group to enter into this Agreement and the Other Reorganization Agreements and risk the adverse effect on their market values that will occur if those agreements are not completed. Lithia expressly agrees that the break-up fees contemplated by this Section 15.5 shall be due even though the Company, the Shareholders or any other member of the ▇▇▇▇▇▇▇▇ Group or any shareholder thereof may have breached any representation, warranty or covenant of this Agreement or the Other Reorganization Agreements, with the sole exception of a willful refusal by any such party to complete this Agreement or any of the Other Reorganization Agreements. The right to collect break-up fees pursuant to this Section 15.5 shall be the exclusive remedy of the Company and the Shareholders in the event of a termination of this Agreement in the circumstances described in Section 15.5.1 or 15.5.break-

Break-Up Fee. 15.5.1 In the event that this Agreement is terminated by the Company based upon a willful refusal by Lithia to complete this the Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 200% of (i) all amounts paid or payable to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For purposes of this Section 15.5, a willful refusal by any party Lithia to complete this the Agreement or any Other Reorganization Agreement means either such partyLithia's refusal to consummate the transactions contemplated by this the Agreement or any Other Reorganization Agreement even though all of the conditions to its obligations to do so have been fulfilled or such partyLithia's failure to take any action within its reasonable control that would result in the fulfillment of a condition to such obligations. 15.5.2 In the event that either party terminates this Agreement for reason of the non-fulfillment of the Designated Condition, Lithia shall pay to the Company a break-up fee equal to the sum of (i) $150,000 multiplied by a fraction, the numerator of which is the Net Adjusted Pretax Income of the Company for 1998 and the denominator of which is the aggregate Net Adjusted Pretax Income of all members of the ▇▇▇▇▇▇▇▇ Group for 1998 and (ii) 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. For this purpose, the Designated Condition means the failure of Lithia to have received approvals from any manufacturer represented by the Company or another member of the ▇▇▇▇▇▇▇▇ Group. 15.5.3 In the event that either party terminates this Agreement for any reason other than (i) those set forth in Sections 15.5.1 or 15.5.2 or (ii) a willful refusal by the Company or any of the other members of the ▇▇▇▇▇▇▇▇ Group or their Shareholders to complete the Agreement or any Other Reorganization Agreement, Lithia shall pay the Company a break-up fee equal to 100% of all amounts paid or payable by the Company to Lithia under the Consulting Agreement dated as of January 1, 1999 among Lithia and the members of the ▇▇▇▇▇▇▇▇ Group in respect of the net profits of the Company. 15.5.4 The break-up fees payable under this Section 15.5 shall be due at the time this Agreement is terminated. Should the transactions contemplated by this Agreement or the Other Reorganization Agreements fail to close for any reason other than a willful refusal by the Company or any other member of the ▇▇▇▇▇▇▇▇ Group to complete this Agreement or any other Reorganization Agreement, it is acknowledged that the Company and the Shareholders would suffer damages; however, the precise amount of such damages would be difficult to establish. The break-up fees provided in this Section represent a good-faith estimate by the parties of the damage that the Company and Shareholders would incur. Lithia acknowledges that the break-up fees payable under Section 15.5.2 and 15.5.3 are reasonable and appropriate, even though Lithia may not have breached any representation, warranty or covenant contained herein in the circumstances described in those sections. To the extent of those break-up fees, Lithia has knowingly accepted the risk of the nonfulfillment of the conditions to its obligations and the obligations of the Company and the Shareholders in the circumstances described in Sections 15.5.2 and 15.5.3 in order to induce the Company and the other members of the ▇▇▇▇▇▇▇▇ Group to enter into this Agreement and the Other Reorganization Agreements and risk the adverse effect on their market values that will occur if those agreements are not completed. Lithia expressly agrees that the break-up fees contemplated by this Section 15.5 shall be due even though the Company, the Shareholders or any other member of the ▇▇▇▇▇▇▇▇ Group or any shareholder thereof may have breached any representation, warranty or covenant of this Agreement or the Other Reorganization Agreements, with the sole exception of a willful refusal by any such party to complete this Agreement or any of the Other Reorganization Agreements. The right to collect break-up fees pursuant to this Section 15.5 shall be the exclusive remedy of the Company and the Shareholders in the event of a termination of this Agreement in the circumstances described in Section 15.5.1 or 15.5.break-