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. (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 placeOutside Date), and (C) at the time of such termination, this Agreement could not have been terminated by Seller in 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 suffered a loss of an incalculable nature and amount, unrecoverable in law, and Buyer shall 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 by wire transfer no later than three Business Days after such termination. (ii) Seller is not in breach in any material respect of its obligations under If (A) this Agreement in any manner that shall have resulted in is terminated pursuant to (1) Section 7.1(b) as a result of the failure to satisfy the conditions set forth in Section 6.1(b) or Section 6.1(c), (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, all of the conditions to consummate the Closing referred under Section 6.1 and Section 6.2 of this Agreement and Section 7(a) and Section 7(b) of the Real Estate Purchase Agreement have been satisfied (other than (x) the conditions set forth in Section 6.1 as they relate to in clause (a) above the necessary clearances under the HSR Act or the imposition condition set forth in Section 6.1(b) as it relates to a Gaming Approval set forth on Schedule 6.1(b)(i), (y) the condition set forth in Section 6.1(a) of this Agreement or Section 7(a)(i) of the Law Real Estate Purchase Agreement, in each case as it relates to a Gaming Approval set forth on Schedule 6.1(b)(ii) and (z) any such conditions which by their nature are to be satisfied by the Closing Date or Governmental Order referred the satisfaction of which are conditioned on the Closing occurring, but that are reasonably capable of being so satisfied by the Outside Date), and (C) at the time of such termination, this Agreement could have been terminated by Seller in a manner which would result in the payment of a Partial PropCo Termination Fee pursuant to Section 7.2(b)(ii), the parties agree that Seller shall have suffered a loss of an incalculable nature and amount, unrecoverable 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 $10,000,000 (the “Partial Buyer Termination Fee”). The Partial 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).

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 this Agreement is terminated validly terminated: (a) (xi) by either Buyer or Seller pursuant to and in accordance with 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)(i8.1(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, (iA) all of the other conditions set forth in at least one of Section 7.01 6.1(a) or Section 6.1(b) (if such Order arises as a result of an Antitrust Law or such Law is an Antitrust Law) shall have not been satisfied or waived; (B) a material breach by the Seller of this Agreement has not been the principal cause of such failure of the conditions in Section 6.1(a) or Section 6.1(b) to be satisfied; and (C) all other conditions to the obligations of Buyer to effect the Transaction set forth in Section 6.1 and Section 7.02 6.2 have been satisfied or (to the extent permitted by applicable Law) waived (except for or, in the case of those conditions that by their nature are to be satisfied at or immediately prior to the Closing; provided that , such conditions were then are capable of being satisfied if the Closing had taken placewere to occur); (ii) by the Buyer or Seller pursuant to and in accordance with Section 8.1(b)(ii), if such Order arises as a result of an Antitrust Law, and, as of the time of such termination, (A) a material breach by Seller of this Agreement has not been the principal cause of such Order specified in Section 8.1(b)(ii) and (iiB) all conditions to the obligations of Buyer to consummate the Transactions set forth in Section 6.1 and Section 6.2 (other than the conditions set forth in Section 6.1(a) or Section 6.1(b)) have been satisfied or (to the extent permitted by applicable Law) waived (or, in the case of those conditions that by their nature are to be satisfied at or immediately prior to the Closing, such conditions are capable of being satisfied if the Closing were to occur); or (iii) by the Buyer pursuant to and in accordance with Section 8.1(e) and, as of the time of such termination, (A) the conditions set forth in at least one of Section 6.1(a) or Section 6.1(b) (if such Order arises as a result of an Antitrust Law or such Law is an Antitrust Law) or Section 6.2(d) shall have not been satisfied or waived; (B) a material breach by the Seller is not in breach in any material respect of its obligations under this Agreement in any manner that shall have resulted in has not been the principal cause of the failure of the such condition to be satisfied; and (C) all other conditions to the obligations of Buyer to effect the Transaction set forth in Section 6.1 and Section 6.2 have been satisfied or (to the extent permitted by applicable Law) waived (or, in the case of those conditions that by their nature are to be satisfied at or immediately prior to the Closing, such conditions are capable of being satisfied if the Closing referred were to in clause (a) above or the imposition of the Law or Governmental Order referred to in clause (b) above, occur); 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 the Seller the Buyer Termination Fee Fee, by wire transfer (to an account designated by the Seller) in immediately available funds within two five (5) 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).

Buyer Termination Fee. (a) If (i) this Agreement is validly terminated (a) (x) by Buyer the Company and the Seller Representative, on the one hand, or Seller Buyer, on the other hand, pursuant to Section 8.01(b)(i9.01(b), Section 9.01(d) as a result of a material breach under Section 10.03, or Section 9.01(e) and (ii) all conditions set forth in Section 8.01(a) or Section 8.01(b) (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 (xany Law in respect of or under the Antitrust Approvals) and (y), have not been satisfied as of the time date of such termination, one or more of the termination but all other 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 satisfied8.01, 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 8.02 and Section 7.02 8.03 shall otherwise have been satisfied or waived (except for other than those conditions that by their nature are to be satisfied at the Closing; provided that such , but which conditions were then capable of being would have been satisfied if the Closing had taken placeDate were the date of such termination), then concurrently with such termination (in the case of a termination by Buyer) or within three (3) Business Days following such termination (in the case of a termination by the Company and Sellers), Buyer shall pay to the Company by wire transfer of immediately available funds an amount equal to $55,000,000 (such amount, the “Termination Fee”). (b) Buyer, the Company, Sellers and the Seller Representative acknowledge that (i) the Termination Fee and other provisions of this Section 9.03 are an integral part of the transactions contemplated hereby, (ii) Seller without these agreements, Buyer, the Company and Sellers would not enter into this Agreement, (iii) any amount payable pursuant to this Section 9.03 does not constitute a penalty but 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 that will compensate the Company and its Affiliates in the circumstances in which such Buyer Termination Fee is due and payable, amounts are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement, 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 precision and (iv) without limiting the agreements contained in foregoing clause (iii), any amounts payable pursuant to this Section 8.03 9.03 are an integral part first treated as a reimbursement of costs and expenses incurred by the Company in connection with the transactions contemplated herebyhereby and, and thatthereafter, without these agreements, Seller would not enter into as proceeds of a disposition of rights of the Company under this Agreement. Accordingly, if If Buyer fails to promptly pay or cause to be paid the payment Termination Fee pursuant to the terms of this Section 9.03, and, in order to obtain the Termination Fee, the Company commences a suit against Buyer that results in a timely manner of judgement against Buyer for the Termination Fee (or any amount due portion thereof) pursuant to this Agreement rendered by a court of competent jurisdiction in accordance with Section 8.0311.17, then (A) Buyer shall cause an Affiliate that is a U.S. Person pay to reimburse Seller for all the Company the reasonable and documented costs and expenses (including disbursements and reasonable fees of counselattorney’s fees) incurred by Seller in the collection of such overdue amount, including Company in connection with any related claimssuch suit for the Termination Fee (the “Buyer Termination Fee Damages”). (c) If (i) this Agreement is terminated is validly terminated by the Company and the Seller Representative, actions on the one hand, or Proceedings commenced by SellerBuyer, on the other hand, pursuant to Section 9.01(b), Section 9.01(d) as a result of a material breach under Section 10.03, or Section 9.01(e) and (Bii) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller interest on such amount from and including all conditions set forth in Section 8.01(a) or Section 8.01(b) (in the date payment case of such amount was due to but excluding any Law in respect of or under the Antitrust Approvals) have not been satisfied as of the date of actual payment at the prime rate such termination but all other conditions to Closing set forth in The Wall Street Journal in effect on Section 8.01, Section 8.02 and Section 8.03 shall otherwise have been satisfied (other than those conditions that by their nature are to be satisfied at Closing, but which conditions would have been satisfied if the Closing Date were the date of 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 Partiestermination), and, upon payment of such amount, none of the Purchaser Related Parties Buyer shall not have any further liability or obligation as a result of, in connection with, relating to or arising out of this Agreement (whether at lawAgreement, in equity, in contract, in tort the other Transaction Documents or otherwise)any other documents and transactions contemplated hereby and thereby except Buyer’s obligation to pay the Termination Fee and any Buyer Termination Fee Damages; provided that the foregoing shall not impair the rights of the Company and/or Sellers to obtain injunctive relief pursuant to Section 11.16 prior to any termination of this Agreement.

Buyer Termination Fee. (i) If this Agreement is terminated (a) (x) by the Buyer or the 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 provided in Section 7.01(a)(i9.1(b) or 7.01(b) (solely to the extent such Governmental Order relates to at 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) when all of the other conditions set forth in Section 7.01 8.1 and Section 7.02 8.2 have been satisfied or waived (satisfied, except for those (A) conditions that by their nature are to be satisfied at the Closing; provided that such conditions were then only capable of being satisfied if the Closing had taken place) at Closing, and (iiB) the condition set forth in Section 8.2(d), or by the Seller as provided Section 9.1(d) as the result of the Buyer’s material breach of its obligations pursuant to Section 6.13 and provided that the Seller is not in material breach in any material respect of its obligations under this Agreement in any manner pursuant to Section 6.13, the Parties agree that the Seller shall have resulted suffered a loss of value to their assets of an incalculable nature and amount, unrecoverable in law, and 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 pay to the Seller a fee of $1,000,000 (the “Buyer Termination Fee”) as liquidated damages, and not as a penalty, it being understood 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. Personx) in no event shall Buyer be required to pay to Seller the Buyer Termination Fee on more than one occasion and (y) under no circumstances shall the Seller be permitted or entitled to receive both a grant of specific performance that results in a Closing and any money damages for a breach of Section 6.13, including all or any portion of the Buyer Termination Fee. The Buyer Termination Fee shall be payable in immediately available funds within two by wire transfer to an account designated by the Seller no later than five (5) Business Days of after such termination. Each of the 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 agree that the agreements contained in this Section 8.03 9.2(c) are an integral part of the transactions contemplated hereby, under this Agreement and that, without these agreements, the Seller would not enter have entered into this Agreement. Accordingly. (ii) Notwithstanding anything to the contrary in this Agreement, 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, 9.2(c) shall constitute be the sole and exclusive remedy of the Seller against the Buyer and or any of its formerAffiliates or any of their respective stockholders, current or future general or limited partners, stockholdersmembers or Representatives for any and all losses that may be suffered based upon, membersresulting from or arising out of the circumstances giving rise to such termination, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the Purchaser Related Parties), and, and upon payment of such amountthe Buyer Termination Fee in accordance with this Section 9.2(c), none of the Purchaser Related Parties Buyer or any of its Affiliates or any of their respective stockholders, partners, members or Representatives 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)the transactions contemplated by this Agreement.

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. (a) If this Agreement is properly terminated by (ai) (x) by Buyer or Seller Parent pursuant to Section 8.01(b)(i8.1(b) (Breach) or Section 8.1(d) (Failure to Close) or (yii) by Buyer pursuant to any other Section and 8.1(e) (Outside Date) and, in the case of this clause (ii), at such time, Seller time Parent had the right to terminate this Agreement pursuant to Section 8.01(b)(i8.1(b) and, in the case of clauses (xBreach) and or Section 8.1(d) (yFailure to Close), as of the time of then Buyer will, within five (5) Business Days after such termination, one or more of the conditions pay to Closing set forth in Section 7.01(a)(i) or 7.01(bParent a cash fee equal to One Hundred Thirty Four Million Seven Hundred Fifty Thousand Dollars ($134,750,000) (solely the “Buyer Termination Fee”) by wire transfer of immediately available funds to an account or accounts designated in writing by Parent at least two (2) Business Days prior 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 payment date. (b) Each Party acknowledges and agrees that the agreement contained in this Section 8.3 is an integral part of the transactions contemplated by this Agreement and that, without such agreement, the other Party would not enter into this Agreement. Parent further agrees and acknowledges that, except as expressly permitted by Section 10.12, if Buyer fails to effect the transactions contemplated by this Agreement or Seller pursuant to Section 8.01(b)(ii) or Section 8.01(b)(iii) (otherwise is in each case, solely breach of this Agreement prior to the extent Closing, then (i) Parent’s and its Affiliates’ sole and exclusive remedy against Buyer, the right Equity Financing Source, the Debt Financing Sources, their respective Affiliates and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, agents, Affiliates, members, managers, general or limited partners, assignees or Representatives (collectively, the “Buyer Related Parties”), whether at law or equity, in contract, in tort or otherwise, will be to terminate this Agreement results from a Law or Governmental Orderin accordance with Section 8.1 and, 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 Buyer 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) required to pay to Seller the Buyer Termination Fee pursuant to Section 8.3(a), to collect the Buyer Termination Fee and the reimbursement of fees, costs and expenses as provided in immediately available funds within two Business Days the last sentence of such termination. Each Section 8.3(c), (ii) the payment of the Parties hereto acknowledges that the Buyer Termination Fee is not intended a penalty and will be deemed to be a penalty, but rather shall constitute liquidated damages in a reasonable amount compensating Seller that will compensate Parent for any and all direct or indirect Liabilities of any kind, character or description incurred or suffered by Parent or any other Person 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 or the transactions contemplated hereby, by this Agreement (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 (Biii) other than as otherwise provided in the foregoing clause (i) and for the Limited Guarantor’s obligations under the Limited Guarantee, no other 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 Party will have any further liability or obligation Liability whatsoever relating to or arising out of this Agreement or any of the transactions contemplated by this Agreement. For the avoidance of doubt, under no circumstances will Parent be (whether at lawA) entitled to collect the Buyer Termination Fee on more than one occasion or (B) permitted or entitled to receive both a grant of specific performance as contemplated by Section 10.12 and the Buyer Termination Fee. (c) If Buyer fails to timely pay the Buyer Termination Fee when due pursuant to this Section 8.3 and, in equityorder to obtain such payment, Parent commences an Action that results in contracta judgment against Buyer for the payment of the Buyer Termination Fee, Buyer will reimburse Parent for its reasonable and documented out-of-pocket fees, costs and expenses (including reasonable and documented attorneys’ fees) in tort connection with such Action; provided, that Buyer’s reimbursement obligation under this Section 8.3 shall not exceed $6,000,000 in the aggregate. (d) Notwithstanding anything herein to the contrary, the Parties further acknowledge and agree that, prior to the Closing, the aggregate liability of Buyer under, or otherwiserelated to, this Agreement, whether or not this Agreement is terminated, and regardless of the reason for any such termination, shall not exceed an amount equal to the Buyer Termination Fee, the payment of any amounts payable by Buyer pursuant to Section 8.3(c), and the payment of any amounts payable by Buyer pursuant to the last sentence of Section 6.24(e).

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 Fee”). (b) Any payment required to be made pursuant to Section 9.04(a) shall be made to Seller promptly following termination of this Agreement (and in any event no later than five (5) business days following the termination of this Agreement). Such payment shall be made by wire transfer of immediately available funds within two Business Days of such termination. Each of the Parties hereto to an account designated in writing by Seller. (c) Buyer acknowledges and agrees 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 agreement contained in this Section 8.03 are 9.04 is an integral part of the transactions contemplated herebyTransactions, and that, without these agreementsthis agreement, Seller would not enter into this Agreement. Accordingly; accordingly, if Buyer fails promptly to cause the payment in a timely manner of pay any amount due pursuant to this Section 8.039.04, then (A) and, in order to obtain such payment, Seller commences a suit that results in a judgment against Buyer for the Buyer Termination Fee, Buyer shall cause an Affiliate that is a U.S. Person pay to reimburse Seller for all its costs and expenses (including disbursements attorneys’ fees and reasonable fees of counselexpenses) incurred by Seller in the collection of such overdue amount, including in connection with any related claimssuch suit, actions or Proceedings commenced by Seller, and (B) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller together with interest on such the amount of the Buyer Termination Fee from and including the date such payment of such amount was due required to but excluding be made until the date of actual payment at the prime rate set forth in The Wall Street Journal of JPMorgan Chase Bank, N.A., 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)made.

Buyer Termination Fee. If (a) Buyer shall pay to the Company a fee of $15,000,000 plus all reasonable fees, expenses and indemnity and other payments (if any) owing any Person by the Company and its Subsidiaries in connection with the Financing (including to the Financing Sources) (such fee and other amounts, collectively, the Termination Fee) if this Agreement is terminated (a) (x) by Buyer or Seller pursuant to Section 8.01(b)(i8.1 (other than Sections 8.1(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)(i8.1(c)) and, in the case of clauses (x) and (y), as of at the time of such termination, one (x) (i) the condition to Closing set forth in Section 6.1(c) shall not have been satisfied (other than where the failure to satisfy such condition has resulted from the Company’s failure to comply in any material respect with its obligations under Section 5.4(b)(ii)(B)), and (ii) all other conditions to Closing set forth in Sections 6.1 and 6.2 shall have been satisfied (other than the conditions to Closing set forth in Section 6.1(d) and 6.2(d) (to the extent the actions and deliveries referred to in Sections 6.1(d) and 6.2(d) would only be undertaken in connection with a Closing following the satisfaction or more waiver of the other conditions in Article VI) and those conditions that, by their nature, are to be satisfied at (but not contingent upon) the Closing but subject to the satisfaction of such conditions) or (y) (i) all of the conditions to Closing set forth in Section 7.01(a)(iSections 6.1 and 6.2 shall have been satisfied (other than the condition to Closing set forth in Sections 6.1(d) or 7.01(band 6.2(d) (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 actions and deliveries referred 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 (aSections 6.1(d) and (b), as of 6.2(d) would only be undertaken in connection with a Closing following the time of such termination, (i) all satisfaction or waiver of the other conditions set forth in Section 7.01 Article VI) and Section 7.02 have been satisfied or waived (except for those conditions that that, by their nature nature, are to be satisfied at the Closing; provided that Closing but subject to the satisfaction of such conditions were then capable of being satisfied if the Closing had taken placeconditions) and (ii) Seller is not in breach in any material respect of its obligations Buyer fails to consummate the transactions contemplated by this Agreement on the date the Closing should have occurred pursuant to Section 2.2. Any such Termination Fee due under this Section 8.3(a) shall be paid by wire transfer of immediately available funds on the Business Day immediately following the date of termination of this Agreement. (b) Notwithstanding anything to the contrary in this Agreement, in the event that Termination Fee is payable in accordance with the terms of this Agreement, the Company’s receipt of the Termination Fee pursuant to this Section 8.3 shall, subject to Section 10.2, be the sole and exclusive remedy of the Company against Buyer or the Financing Sources, or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, affiliates, agents, representatives, successors or assigns for any loss suffered as a result of any breach of any covenant or agreement in this Agreement in any manner that shall have resulted in or the failure of the conditions to Closing referred to in clause (a) above transactions contemplated by this Agreement, and upon payment of such amounts, none of Buyer or the imposition Financing Sources, or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, affiliates, agents, representatives, successors or assigns shall have any further liability or obligation relating to or arising out of this Agreement or 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 terminationtransactions contemplated by this Agreement. 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 Company 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 and agrees that the agreements contained in this Section 8.03 8.3(a) are an integral part of the transactions contemplated hereby, and that, without these agreements, Seller the Company would not enter into this AgreementAgreement and the parties expressly acknowledge and agree that in the event that the Company is paid the Termination Fee, the receipt of the Termination Fee by the Company shall not be deemed a penalty, but shall be deemed to be liquidated damages for any and all losses suffered or expenses incurred by the Company in a reasonable amount that will compensate the Company in the circumstances in which such fee is payable for the efforts and resources expended by the Company and its Affiliates, and its and their representatives, and the opportunities foregone by the Company, while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Closing, which amount would otherwise be impossible to calculate with precision. Accordingly, if If Buyer fails promptly to cause pay the payment in a timely manner of any amount due pursuant to Section 8.038.3(a), then (A) and, in order to obtain such payment, the Company commences a claim that results in a judgment or order in its favor for such payment, Buyer shall cause an Affiliate that is a U.S. Person pay to reimburse Seller for the Company all out-of-pocket 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 claimssuch claim, actions or Proceedings commenced by Seller, and (B) Buyer shall cause an Affiliate that is a U.S. Person to pay to Seller together with interest on such the 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 from the date such payment was required to be made plus 2% until the date of payment at a rate per annum. Seller’s right annum equal to receive payment from Buyer the prime interest rate published in The Wall Street Journal on the date such interest begins accruing. (c) This Section 8.3 shall not limit the ability of the Buyer Termination Fee parties to enforce the Confidentiality Agreement nor shall it limit the right of the parties to seek specific performance of this Agreement pursuant to Section 10.2 prior to the termination of this Section 8.03, under circumstances in which such fee is payable Agreement in accordance with this Agreementits terms; provided that under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance and monetary damages, shall constitute the sole and exclusive remedy of Seller against Buyer and including all or 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 portion 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)Termination Fee.