AS REASONABLY
DETERMINED BY THE BOARD OF DIRECTORS.
7.2
Termination by Yucaipa.
Yucaipa may elect
to terminate this Agreement:
(A)
IF THE COMPANY SHALL FAIL TO REASONABLY
PERFORM ANY MATERIAL COVENANT, AGREEMENT, TERM OR PROVISION OF THIS AGREEMENT TO
BE KEPT, OBSERVED OR PERFORMED BY IT (OTHER THAN ANY FAILURE OR ALLEGED FAILURE
OCCASIONED BY OR RESULTING FROM FORCE MAJEURE, DIRECTLY OR INDIRECTLY) AND SUCH
FAILURE SHALL CONTINUE FOR A PERIOD OF SIXTY (60) DAYS AFTER WRITTEN NOTICE
THEREOF FROM YUCAIPA, WHICH NOTICE SHALL DESCRIBE THE ALLEGED FAILURE WITH
PARTICULARITY;
(B)
IF THE COMPANY SHALL FAIL TO MAKE ANY
PAYMENT DUE TO YUCAIPA HEREUNDER, IF SUCH PAYMENT IS NOT MADE IN FULL WITHIN
THIRTY (30) DAYS AFTER WRITTEN NOTICE OF SUCH FAILURE; OR
(C)
AT ANY TIME UPON GIVING THE COMPANY AT
LEAST NINETY (90) DAYS' WRITTEN NOTICE OF SUCH TERMINATION.
7.3
TERMINATION FOR CHANGE OF CONTROL.
THIS
AGREEMENT MAY BE TERMINATED, AT THE ELECTION OF EITHER YUCAIPA OR THE COMPANY,
IF DURING THE TERM HEREOF THERE SHALL HAVE BEEN A CHANGE IN CONTROL OF THE
COMPANY, WHICH FOR PURPOSES OF THIS AGREEMENT SHALL BE DEEMED TO HAVE OCCURRED
UPON ANY OF THE FOLLOWING EVENTS:
(A) THE ACQUISITION AFTER THE CLOSING, IN ONE
OR MORE TRANSACTIONS, OF "BENEFICIAL OWNERSHIP" (WITHIN THE MEANING OF RULE
13D-3(A)(1) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE
ACT")) BY ANY PERSON (OTHER THAN YUCAIPA OR ANY OF ITS MEMBERS OR AFFILIATES) OR
ANY GROUP OF PERSONS (EXCLUDING ANY GROUP WHICH INCLUDES YUCAIPA OR ANY OF ITS
MEMBERS OR AFFILIATES) WHO CONSTITUTE A GROUP (WITHIN THE MEANING OF
SECTION 13(D)(3) OF THE EXCHANGE ACT) OF ANY SECURITIES OF THE COMPANY SUCH
THAT, AS A RESULT OF SUCH ACQUISITION, SUCH PERSON OR GROUP BENEFICIALLY OWNS
(WITHIN THE MEANING OF RULE 13D-3(A)(1) UNDER THE EXCHANGE ACT) 51% OR MORE OF
THE COMPANY'S THEN OUTSTANDING VOTING SECURITIES ENTITLED TO VOTE FOR A MAJORITY
OF THE BOARD OF DIRECTORS; OR (B) THE SALE OF ALL OR SUBSTANTIALLY ALL OF THE
ASSETS OR CAPITAL STOCK OF THE COMPANY (INCLUDING, WITHOUT LIMITATION, BY WAY OF
MERGER, CONSOLIDATION, LEASE OR ANY OTHER TRANSFER) IN A TRANSACTION OR SERIES
OF RELATED TRANSACTIONS (EXCLUDING ANY SALE TO YUCAIPA OR ANY OF ITS MEMBERS OR
AFFILIATES).
FOR PURPOSES OF THIS SECTION, "AFFILIATE" SHALL MEAN ANY PERSON
CONTROLLED BY, OR UNDER COMMON CONTROL WITH, THE SPECIFIED PERSON.
7.4
PAYMENTS UPON TERMINATION.
(A)
IN THE EVENT OF ANY TERMINATION PURSUANT TO
SECTION 7.1(A), SECTION 7.2(A), SECTION 7.2(B) OR SECTION 7.3, THE COMPANY SHALL
PAY, OR CAUSE TO BE PAID, TO YUCAIPA A CASH TERMINATION PAYMENT OF $10,000,000
(THE "TERMINATION FEE"); PROVIDED, HOWEVER, THAT IF SUCH
4
TERMINATION SHALL OCCUR DURING ANY RENEWAL TERM, IN LIEU OF THE TERMINATION FEE,
THE COMPANY SHALL PAY, OR CAUSE TO BE PAID, TO YUCAIPA A CASH PAYMENT EQUAL TO
THAT PORTION OF THE ANNUAL FEE THAT WOULD HAVE BEEN PAID TO YUCAIPA UNDER
SECTION 2 HEREOF DURING THE REMAINING PORTION OF SUCH RENEWAL TERM.
(B)
THE AMOUNTS,