Common use of Buyer Termination Fee Clause in Contracts

Buyer Termination Fee. If this Agreement is terminated (a) (x) by Buyer or Seller pursuant to Section 8.01(b)(i) or (y) by Buyer pursuant to any other Section and at such time, Seller had the right to terminate this Agreement pursuant to Section 8.01(b)(i) and, in the case of clauses (x) and (y), as of the time of such termination, one or more of the conditions to Closing set forth in Section 7.01(a)(i) or 7.01(b) (solely to the extent such Governmental Order relates to a U.S. Antitrust Law and was imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws) shall not have been satisfied, or (b) by Buyer or Seller pursuant to Section 8.01(b)(ii) or Section 8.01(b)(iii) (in each case, solely to the extent the right to terminate this Agreement results from a Law or Governmental Order, as applicable, imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws and relates to a U.S. Antitrust Law), and in the case of clauses (a) and (b), as of the time of such termination, (i) all of the other conditions set forth in Section 7.01 and Section 7.02 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing; provided that such conditions were then capable of being satisfied if the Closing had taken place) and (ii) Seller is not in breach in any material respect of its obligations under this Agreement in any manner that shall have resulted in the failure of the conditions to Closing referred to in clause (a) above or the imposition of the Law or Governmental Order referred to in clause (b) above, then Buyer shall cause an Affiliate of Buyer that is United States person within the meaning of Section 7701 of the Code for the purposes of Section 250 of the Code (a U.S. Person) to pay to Seller the Buyer Termination Fee in immediately available funds within two Business Days of such termination. Each of the Parties hereto acknowledges that the Buyer Termination Fee is not intended to be a penalty, but rather shall constitute liquidated damages in a reasonable amount compensating Seller in the circumstances in which such Buyer Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Buyer acknowledges that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated hereby, and that, without these agreements, Seller would not enter into this Agreement. Accordingly, if Buyer fails to cause the payment in a timely manner of any amount due pursuant to Section 8.03, then (A) Buyer shall cause an Affiliate that is a U.S. Person to reimburse Seller for all costs and expenses (including disbursements and reasonable fees of counsel) incurred by Seller in the collection of such overdue amount, including in connection with any related claims, actions or Proceedings commenced by Seller, and (B) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2% per annum. Seller’s right to receive payment from Buyer of the Buyer Termination Fee pursuant to this Section 8.03, under circumstances in which such fee is payable in accordance with this Agreement, shall constitute the sole and exclusive remedy of Seller against Buyer and any of its former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the Purchaser Related Parties), and, upon payment of such amount, none of the Purchaser Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (whether at law, in equity, in contract, in tort or otherwise).

Buyer Termination Fee. (a) If this Agreement is terminated (a) (xi) by Buyer or Seller pursuant to Section 8.01(b)(i10.1(b) or (y) by Buyer pursuant to any other Section 10.1(c) and at the time of such time, termination at least one of the conditions set forth in Section 8.1(a) (as a result of any Governmental Order or legal proceeding with respect to the Antitrust Laws) or Section 8.1(b) shall not have been satisfied or (ii) by Seller had the right to terminate this Agreement or Buyer pursuant to Section 8.01(b)(i10.1(d) andin connection with an Antitrust Law or a Governmental Order with respect to the Antitrust Laws (any such termination in clause (i) or (ii), an “Eligible Termination”), and the Fee Conditions are satisfied, then Buyer shall promptly, but in no event later than two (2) Business Days after receipt of a Termination Fee Certificate, pay or cause to be paid to Seller by wire transfer of same day funds Thirty Million Dollars ($30,000,000) (the “Buyer Termination Fee”). The Buyer Termination Fee shall not be payable, however, unless at the time of payment each of the following conditions are satisfied (the “Fee Conditions”): (x) Seller is not in breach of its representations, warranties, agreements or covenants in a manner that would give rise to the failure of a condition set forth in Section 8.2(a) or Section 8.2(b); (y) all conditions to the obligations of Buyer to consummate the Transaction set forth in Section 8.1 which are not the basis for the Eligible Termination or Section 8.2 (except those conditions that by their terms cannot be satisfied until the Closing but which would, if the Closing were then held, be capable of satisfaction) have been satisfied or waived; and (z) an authorized officer of Seller delivers to Buyer a signed document, certifying on behalf of Seller, that as of the date of such certificate, the conditions set forth in the case of preceding clauses (x) and (y) of this Section 10.4(a) have been satisfied (a “Termination Fee Certificate”). If there has been an Eligible Termination and Buyer intends to assert that the Fee Condition in clause (x) has not been satisfied as a result of Buyer having knowledge of a Curable Breach and Buyer has not previously notified Seller in writing of such Curable Breach and provided Seller with thirty (30) days to cure such Curable Breach (a “Cure Period”), then Buyer shall, within two (2) Business Days after receipt of a Termination Fee Certificate, either (i) notify Seller in writing of such Curable Breach (a “Notified Breach”) and provide Seller with an opportunity to cure such Notified Breach during the Cure Period, or (ii) pay the Buyer Termination Fee. In the event of a Notified Breach, Buyer shall not be obligated to pay the Buyer Termination Fee unless and until any applicable Cure Period with respect to every Notified Breach has expired and the Fee Conditions are satisfied as of the time of such termination, one or more end of the conditions to Closing set forth in Section 7.01(a)(ilatest ending Cure Period, at which time Buyer shall promptly pay the Buyer Termination Fee. Notwithstanding the foregoing, if Buyer delivers (A) or 7.01(b) (solely to the extent such Governmental Order relates to a U.S. Antitrust Law and was imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws) shall not have been satisfied, or (b) by Buyer or Seller pursuant to Section 8.01(b)(ii) or Section 8.01(b)(iii) (in each case, solely to the extent the right to terminate this Agreement results from a Law or Governmental Order, as applicable, imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws and relates to a U.S. Antitrust Law), and in the case of clauses (a) and (b), as of the time of such terminationTermination Fee Certificate, (iB) all of the other conditions set forth in Section 7.01 and Section 7.02 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing; provided that such conditions were then capable of being satisfied if the Closing had taken place) and (ii) Seller is not in breach in any material respect of its obligations under this Agreement in any manner that shall have resulted in the failure of the conditions to Closing referred to in clause (a) above or the imposition of the Law or Governmental Order referred to in clause (b) above, then Buyer shall cause an Affiliate of Buyer that is United States person within the meaning of Section 7701 of the Code for the purposes of Section 250 of the Code (a U.S. Person) unconditional written offer to pay to Seller the Buyer Termination Fee in immediately available funds within two Business Days settlement of such termination. Each of the Parties hereto acknowledges that any dispute between Buyer and Seller over whether the Buyer Termination Fee is not intended to be payable and (C) a penalty, but rather shall constitute liquidated damages release (such release being conditioned upon receipt of the Seller Release) of Seller and its Affiliates from all claims and liabilities in a reasonable amount compensating Seller in the circumstances in which such Buyer Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone while negotiating connection with this Agreement and in reliance on this Agreement, and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Buyer acknowledges that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated hereby, and that, without these agreements, Seller would not enter into this Agreement. Accordingly, if Buyer fails to cause the payment in a timely manner of any amount due pursuant to Section 8.03, then (A) Buyer shall cause an Affiliate that is a U.S. Person to reimburse Seller for all costs and expenses (including disbursements and reasonable fees of counsel) incurred by Seller in the collection of such overdue amount, including in connection with any related claims, actions or Proceedings commenced by Seller, and (B) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2% per annum. Seller’s right to receive payment from Buyer of the Buyer Termination Fee pursuant to this Section 8.03, under circumstances in which such fee is payable in accordance with this Agreement, shall constitute the sole and exclusive remedy of Seller against Buyer and any of its former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the Purchaser Related Parties), and, upon payment of such amount, none of the Purchaser Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (whether at law, in equity, in contract, in tort or otherwise).Transaction

Buyer Termination Fee. If this Agreement is terminated (a) (x) by Buyer or Seller pursuant to Section 8.01(b)(i) or (y) by Buyer pursuant to any other Section and at such time, Seller had In the right to terminate event that the Company terminates this Agreement pursuant to Section 8.01(b)(i) and, in the case of clauses (x) and (y), as of the time of such termination, one or more of the conditions to Closing set forth in Section 7.01(a)(i) or 7.01(b) (solely to the extent such Governmental Order relates to a U.S. Antitrust Law and was imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws) shall not have been satisfied, or (b) by Buyer or Seller pursuant to Section 8.01(b)(ii7.1(b) or Section 8.01(b)(iii) (7.1(d), then in each such case, solely if at such time all conditions to Parent’s, Buyer’s and Merger Sub’s obligations to consummate the extent Merger and the right to terminate this Agreement results from a Law or Governmental Order, as applicable, imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws and relates to a U.S. Antitrust Law), and in the case of clauses (a) and (b), as of the time of such termination, (i) all of the other conditions set forth in Section 7.01 and Section 7.02 Transactions will have been satisfied or waived (except for other than those conditions that by their nature are expected to be satisfied as of the Closing or by actions taken at the Closing or other conditions that are not satisfied as a result of the events which gave rise to the right to terminate pursuant to Section 7.1(b) or Section 7.1(d)), then at the Company’s option, Buyer will pay to the Company a termination fee of $54,000,000 in cash in immediately available funds (the “Buyer Termination Fee”). In the event that the Company or Buyer terminates this Agreement pursuant to Section 7.1(b) and at such time all conditions to Parent’s, Buyer’s and Merger Sub’s obligations to consummate the Merger and the Transactions will have been satisfied and all conditions to the Company’s obligation to consummate the Merger and the Transactions will have been satisfied (in each case other than those conditions that by their nature are expected to be satisfied as of the Closing or by actions taken at the Closing; provided that such conditions were then capable of being satisfied if ) except the Closing had taken place) and (ii) Seller is not condition set forth in breach in any material respect of its obligations under this Agreement in any manner that shall have resulted in the failure of the conditions to Closing referred to in clause (a) above or the imposition of the Law or Governmental Order referred to in clause (b) aboveSection 6.1(a), then Buyer shall cause an Affiliate of Buyer that is United States person within the meaning of Section 7701 of the Code for the purposes of Section 250 of the Code (a U.S. Person) to will pay to Seller the Company the Buyer Termination Fee in cash in immediately available funds within two Business Days of such terminationfunds. Each of In the Parties hereto acknowledges event that the Buyer Termination Fee is not intended Company receives full payment pursuant to be a penalty, but rather shall constitute liquidated damages in a reasonable amount compensating Seller in the circumstances in which such Buyer Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Buyer acknowledges that the agreements contained in this Section 8.03 are an integral part of 7.3, the transactions contemplated hereby, and that, without these agreements, Seller would not enter into this Agreement. Accordingly, if Buyer fails to cause the payment in a timely manner of any amount due pursuant to Section 8.03, then (A) Buyer shall cause an Affiliate that is a U.S. Person to reimburse Seller for all costs and expenses (including disbursements and reasonable fees of counsel) incurred by Seller in the collection of such overdue amount, including in connection with any related claims, actions or Proceedings commenced by Seller, and (B) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2% per annum. Seller’s right to receive payment from Buyer receipt of the Buyer Termination Fee pursuant will be deemed to this Section 8.03, under circumstances be liquidated damages for any and all Losses suffered or incurred by the Company in which such fee is payable in accordance connection with this Agreement, shall constitute the sole Transactions (and exclusive remedy of Seller the abandonment or termination thereof) or any matter forming the basis for such termination, and neither the Company nor any other Person will be entitled to bring or maintain any Action against Buyer and Parent, Buyer, Merger Sub or any of its former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, their respective Affiliates or assignees (collectively, the Purchaser Related Parties), and, upon payment of such amount, none of the Purchaser Related Parties shall have any further liability or obligation relating to or arising out of or in connection with this Agreement, the Transactions (or the abandonment or termination thereof) or any matters forming the basis for such termination. The Parties understand that in no event will Buyer be required to pay the Buyer Termination Fee on more than one occasion. For the avoidance of doubt, unless the Company exercises its option to receive the Buyer Termination Fee as provided in the first sentence above and receives such Buyer Termination Fee or the Company receives the Buyer Termination Fee as provided in the second sentence above, nothing in this Agreement (whether at lawlimits the Company’s right to xxx Parent, Buyer or Merger Sub for damages in equity, in contract, in tort accordance with and subject to Section 7.2(a)(iii) or otherwise)seek specific performance or other equitable relief.

Buyer Termination Fee. (a) If this Agreement is terminated (a) (xi) by Buyer or Seller pursuant to Section 8.01(b)(i10.1(b) or (y) by Buyer pursuant to any other Section 10.1(c) and at the time of such time, termination at least one of the conditions set forth in Section 8.1(a) (as a result of any Governmental Order or legal proceeding with respect to the Antitrust Laws) or Section 8.1(b) shall not have been satisfied or (ii) by Seller had the right to terminate this Agreement or Buyer pursuant to Section 8.01(b)(i10.1(d) andin connection with an Antitrust Law or a Governmental Order with respect to the Antitrust Laws (any such termination in clause (i) or (ii), an “Eligible Termination”), and the Fee Conditions are satisfied, then Buyer shall promptly, but in no event later than two (2) Business Days after receipt of a Termination Fee Certificate, pay or cause to be paid to Seller by wire transfer of same day funds Thirty Million Dollars ($30,000,000) (the “Buyer Termination Fee”). The Buyer Termination Fee shall not be payable, however, unless at the time of payment each of the following conditions are satisfied (the “Fee Conditions”): (x) Seller is not in breach of its representations, warranties, agreements or covenants in a manner that would give rise to the failure of a condition set forth in Section 8.2(a) or Section 8.2(b); (y) all conditions to the obligations of Buyer to consummate the Transaction set forth in Section 8.1 which are not the basis for the Eligible Termination or Section 8.2 (except those conditions that by their terms cannot be satisfied until the Closing but which would, if the Closing were then held, be capable of satisfaction) have been satisfied or waived; and (z) an authorized officer of Seller delivers to Buyer a signed document, certifying on behalf of Seller, that as of the date of such certificate, the conditions set forth in the case of preceding clauses (x) and (y) of this Section 10.4(a) have been satisfied (a “Termination Fee Certificate”). If there has been an Eligible Termination and Buyer intends to assert that the Fee Condition in clause (x) has not been satisfied as a result of Buyer having knowledge of a Curable Breach and Buyer has not previously notified Seller in writing of such Curable Breach and provided Seller with thirty (30) days to cure such Curable Breach (a “Cure Period”), as then Buyer shall, within two (2) Business Days after receipt of the time a Termination Fee Certificate, either (i) notify Seller in writing of such termination, one or more of Curable Breach (a “Notified Breach”) and provide Seller with an opportunity to cure such Notified Breach during the conditions to Closing set forth in Section 7.01(a)(i) or 7.01(b) (solely to the extent such Governmental Order relates to a U.S. Antitrust Law and was imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws) shall not have been satisfiedCure Period, or (b) by Buyer or Seller pursuant to Section 8.01(b)(ii) or Section 8.01(b)(iii) (in each case, solely to the extent the right to terminate this Agreement results from a Law or Governmental Order, as applicable, imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws and relates to a U.S. Antitrust Law), and in the case of clauses (a) and (b), as of the time of such termination, (i) all of the other conditions set forth in Section 7.01 and Section 7.02 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing; provided that such conditions were then capable of being satisfied if the Closing had taken place) and (ii) Seller is not in breach in any material respect pay the Buyer Termination Fee. In the event of its obligations under this Agreement in any manner that shall have resulted in the failure of the conditions to Closing referred to in clause (a) above or the imposition of the Law or Governmental Order referred to in clause (b) abovea Notified Breach, then Buyer shall cause an Affiliate of Buyer that is United States person within the meaning of Section 7701 of the Code for the purposes of Section 250 of the Code (a U.S. Person) not be obligated to pay to Seller the Buyer Termination Fee in immediately available funds within two Business Days of such termination. Each unless and until any applicable Cure Period with respect to every Notified Breach has expired and the Fee Conditions are satisfied as of the Parties hereto acknowledges that end of the latest ending Cure Period, at which time Buyer shall promptly pay the Buyer Termination Fee is not intended to be a penalty, but rather shall constitute liquidated damages in a reasonable amount compensating Seller in the circumstances in which such Buyer Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this 68 Asset Purchase Agreement, and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Buyer acknowledges that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated hereby, and that, without these agreements, Seller would not enter into this Agreement. Accordingly, if Buyer fails to cause the payment in a timely manner of any amount due pursuant to Section 8.03, then (A) Buyer shall cause an Affiliate that is a U.S. Person to reimburse Seller for all costs and expenses (including disbursements and reasonable fees of counsel) incurred by Seller in the collection of such overdue amount, including in connection with any related claims, actions or Proceedings commenced by Seller, and (B) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2% per annum. Seller’s right to receive payment from Buyer of the Buyer Termination Fee pursuant to this Section 8.03, under circumstances in which such fee is payable in accordance with this Agreement, shall constitute the sole and exclusive remedy of Seller against Buyer and any of its former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the Purchaser Related Parties), and, upon payment of such amount, none of the Purchaser Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (whether at law, in equity, in contract, in tort or otherwise).

Buyer Termination Fee. If (a) In the event that (i) this Agreement is terminated (a) (x) by Buyer or Seller pursuant to (A) Section 8.01(b)(i9.01(c) or (y) by Buyer pursuant to any other Section and at such time, Seller had the right to terminate this Agreement pursuant to Section 8.01(b)(i9.02(c) and, in the case of clauses (x) and (y), as of at the time of such termination, one or more any of the conditions to the Principal Closing set forth in Section 7.01(a)(i5.01(e) (if such Principal Closing Legal Impediment giving rise to such termination is in respect of an Anti-Trust Approval in any of the jurisdictions specified on Schedule 5.01(f) to the Disclosure Letter) or 7.01(b) (solely to the extent such Governmental Order relates to a U.S. Antitrust Law and was imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws5.01(f) shall not have been satisfied, satisfied or (bB) pursuant to Section 9.01(b) or 9.02(b) (as a result of a Principal Closing Legal Impediment in respect of an Anti-Trust Approval in any of the jurisdictions specified on Schedule 5.01(f) to the Disclosure Letter or the inability of the condition in Section 5.01(f) to be satisfied), (ii) the failure of one or more of such conditions giving rise to such termination is caused by the failure of Buyer to sell, divest or dispose (including by licensing any intellectual property rights) of any assets or businesses of Buyer or any of its Affiliates (or equity interests held by Buyer or Seller any of its Affiliates in entities with assets or businesses) under circumstances in which Buyer would have been required to sell, divest or dispose of any assets of the Business pursuant to Section 8.01(b)(ii) or Section 8.01(b)(iii) (in each case, solely to the extent the right to terminate this Agreement results from a Law or Governmental Order, as applicable, imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws and relates to a U.S. Antitrust Law), and in the case of clauses (a6.06(d) and (b), as of iii) at the time of such termination, (i) all of the other conditions set forth in Section 7.01 and Section 7.02 5.01 would have been satisfied or waived if the Principal Closing would have occurred on the date of such termination (except for those conditions that by their nature are other than (x) the condition in Section 5.01(e) if the failure of such condition to be satisfied at is solely the Closing; provided that such conditions were then capable result of being satisfied if a Principal Closing Legal Impediment in respect of an Anti-Trust Approval in any of the Closing had taken placejurisdictions specified on Schedule 5.01(f) to the Disclosure Letter, (y) the condition in Section 5.01(f) and (iiz) Seller is not the condition in breach in any material respect of its obligations under this Agreement in any manner that shall have resulted in Section 5.01(j) if the failure of such condition to be satisfied is solely the conditions result of the failure to Closing referred to obtain the requisite Anti-Trust Approval in clause (a) above the applicable jurisdiction or the imposition existence of a Principal Closing Legal Impediment in respect of an Anti-Trust Approval in the Law or Governmental Order referred to in clause (b) aboveapplicable jurisdiction), then Buyer shall cause an Affiliate of Buyer that is United States person within the meaning of Section 7701 of the Code for the purposes of Section 250 of the Code (a U.S. Person) to pay to Seller a termination fee of thirty eight million, eight hundred eighty thousand dollars ($38,880,000) in cash (the “Buyer Termination Fee in immediately available funds within two Business Days of such termination. Each of the Parties hereto acknowledges that the Buyer Termination Fee is not intended to be a penalty, but rather shall constitute liquidated damages in a reasonable amount compensating Seller in the circumstances in which such Buyer Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Buyer acknowledges that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated hereby, and that, without these agreements, Seller would not enter into this Agreement. Accordingly, if Buyer fails to cause the payment in a timely manner of any amount due pursuant to Section 8.03, then (A) Buyer shall cause an Affiliate that is a U.S. Person to reimburse Seller for all costs and expenses (including disbursements and reasonable fees of counsel) incurred by Seller in the collection of such overdue amount, including in connection with any related claims, actions or Proceedings commenced by Seller, and (B) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2% per annum. Seller’s right to receive payment from Buyer of the Buyer Termination Fee pursuant to this Section 8.03, under circumstances in which such fee is payable in accordance with this Agreement, shall constitute the sole and exclusive remedy of Seller against Buyer and any of its former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the Purchaser Related Parties), and, upon payment of such amount, none of the Purchaser Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (whether at law, in equity, in contract, in tort or otherwiseFee”).

Buyer Termination Fee. (i) If (A) this Agreement is terminated (a) (x) by Buyer or Seller pursuant to (1) Section 8.01(b)(i7.1(b) as a result of the failure to satisfy the conditions set forth in Section 6.1(b) or (y) by Buyer pursuant to any other Section and at such time, Seller had the right to terminate this Agreement pursuant to Section 8.01(b)(i) and, in the case of clauses (x) and (y6.1(c), as of (2) Section 7.1(c), (3) Section 7.1(d) if the relevant order, decree or ruling relates to a failure to obtain the necessary clearances under the HSR Act, or (4) Section 7.1(f), (B) at the time of such termination, one or more all of the conditions to Buyer’s obligations to consummate the Closing set forth in under Section 7.01(a)(i) or 7.01(b) (solely to the extent such Governmental Order relates to a U.S. Antitrust Law 6.1 and was imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws) shall not Section 6.2 have been satisfied, or satisfied (bother than (x) by Buyer or Seller pursuant to Section 8.01(b)(ii) or Section 8.01(b)(iii) (in each case, solely to the extent the right to terminate this Agreement results from a Law or Governmental Order, as applicable, imposed by a Governmental Authority with jurisdiction over the enforcement of U.S. Antitrust Laws and relates to a U.S. Antitrust Law), and in the case of clauses (a) and (b), as of the time of such termination, (i) all of the other conditions set forth in Section 7.01 6.1 as they relate to the necessary clearances under the HSR Act or the condition set forth in Section 6.1(b) as it relates to a Gaming Approval set forth on Schedule 6.1(b)(i), and Section 7.02 have been satisfied or waived (except for those y) any such conditions that which by their nature are to be satisfied at by the Closing; provided Closing Date or the satisfaction of which are conditioned on the Closing occurring, but that such conditions were then are reasonably capable of being so satisfied if by the Closing had taken place) Outside Date), and (iiC) Seller is not in breach in any material respect at the time of its obligations under such termination, this Agreement could not have been terminated by Seller in any a manner which would result in the payment of a PropCo Termination Fee or Partial PropCo Termination Fee pursuant to Section 7.2(b), the parties agree that Seller shall have resulted suffered a loss of an incalculable nature and amount, unrecoverable in the failure of the conditions to Closing referred to in clause (a) above or the imposition of the Law or Governmental Order referred to in clause (b) abovelaw, then and Buyer shall cause an Affiliate of Buyer that is United States person within the meaning of Section 7701 of the Code for the purposes of Section 250 of the Code (a U.S. Person) to pay to Seller a fee equal to $20,000,000 (the “Buyer Termination Fee”). The Buyer Termination Fee shall be payable in immediately available funds within two by wire transfer no later than three Business Days of after such termination. Each of the Parties hereto acknowledges that the Buyer Termination Fee is not intended to be a penalty, but rather shall constitute liquidated damages in a reasonable amount compensating Seller in the circumstances in which such Buyer Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Buyer acknowledges that the agreements contained in this Section 8.03 are an integral part of the transactions contemplated hereby, and that, without these agreements, Seller would not enter into this Agreement. Accordingly, if Buyer fails to cause the payment in a timely manner of any amount due pursuant to Section 8.03, then (A) Buyer shall cause an Affiliate that is a U.S. Person to reimburse Seller for all costs and expenses (including disbursements and reasonable fees of counsel) incurred by Seller in the collection of such overdue amount, including in connection with any related claims, actions or Proceedings commenced by Seller, and (B) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2% per annum. Seller’s right to receive payment from Buyer of the Buyer Termination Fee pursuant to this Section 8.03, under circumstances in which such fee is payable in accordance with this Agreement, shall constitute the sole and exclusive remedy of Seller against Buyer and any of its former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the Purchaser Related Parties), and, upon payment of such amount, none of the Purchaser Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (whether at law, in equity, in contract, in tort or otherwise).