Common use of Effect of Termination; Termination Fee Clause in Contracts

Effect of Termination; Termination Fee. (a) Subject to Section 8.02(b), in the event of the termination of this Agreement pursuant to Section 8.01, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of Buyer or the Company and their respective directors, officers, employees, partners, managers, members, or stockholders and all rights and obligations of each Party shall cease, except for the agreements contained in Sections 6.08, 8.02, and Article IX; provided, however, that nothing contained in this Section 8.02 shall relieve either Party from liabilities or damages arising out of any fraud or willful breach by such Party of any of its representations, warranties, or covenants contained in this Agreement. (b) If this Agreement is terminated (i) by the Company pursuant to Section 8.01(i) or (ii) by Buyer pursuant to Section 8.01(e) or Section 8.01(g), then the Company shall promptly pay to Buyer an amount in cash equal to the sum of (A) $5,431,250 (the “Termination Fee”) plus (B) an amount not to exceed, in the aggregate, $2,607,000 for the out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts, and consultants, incurred by Buyer or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”, and together with the Termination Fee, the “Liquidated Amount”). Payment of the Termination Fee required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds (A) prior to a termination of this Agreement by the Company under Section 8.01(i) and (B) within three Business Days after the date of termination of this Agreement by Buyer under Section 8.01(e) or Section 8.01(g). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides the Company with reasonable documentation of such Buyer Expenses. In the event that the Company shall fail to pay the Termination Fee or any Buyer Expenses when due, the Company shall pay the costs and expenses (including legal fees and expenses) incurred in connection with any action, including the prosecution of any lawsuit or other legal action, taken to collect payment, together with interest on such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%. (c) Notwithstanding anything to the contrary in this Agreement, Buyer hereto expressly acknowledges and agrees that, with respect to any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the payment of the Liquidated Amount shall constitute liquidated damages with respect to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholders, with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the rights to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g); and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b), Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, and (B) be entitled to seek or obtain any other damages of any kind, including consequential, indirect, or punitive damages.

Effect of Termination; Termination Fee. (a) Subject to Except as set forth in this Section 8.02(b)8.5, in the event of the termination of this Agreement pursuant to Section 8.01by either Parent or the Company as provided in this Article VIII, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of Buyer the Parties or the Company and their respective directorsaffiliates, officers, employeesdirectors or shareholders except (x) with respect to the treatment of confidential information pursuant to Section 6.6, partners, managers, members, or stockholders and all rights and obligations the payment of each Party shall cease, except for the agreements contained in Sections 6.08, 8.02expenses pursuant to Section 9.1, and Article IX; providedIX generally, however, (y) to the extent that nothing contained in this Section 8.02 shall relieve either Party such termination results from liabilities or damages arising out of any fraud or the willful breach by such of a Party of any of its representations, representations or warranties, or any of its covenants contained or agreements or (z) with respect to any intentional or knowing misrepresentations in connection with or pursuant to this AgreementAgreement or the transactions contemplated hereby. (b) In the event that (i) this Agreement is terminated by either the Company or Parent (x) pursuant to Section 8.2(a) due to the Company Shareholders Meeting not occurring as a result of a Company Acquisition Proposal or (y) pursuant to Section 8.2(c), or (ii) this Agreement is terminated by Parent pursuant to Sections 8.4(a), 8.4(b) or 8.4(c), then the Company shall promptly, but in no event later than the date of such termination, pay Parent a fee equal to $2,000,000 (the "Termination Fee"), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.5(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) In the event that this Agreement is terminated by the Company pursuant to Sections 8.3(a) or 8.3(b), then Parent shall promptly, but in no event later than the date of such termination, pay the Company a fee equal to the Termination Fee, payable by wire transfer of same day funds. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement, and accordingly, if Parent fails promptly to pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee set forth in this Section 8.5(b), Parent shall pay to the Company its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. 49 (d) In the event both Parent and the Company would otherwise be entitled to receive the Termination Fee under this Section 8.5 in connection with the termination of this Agreement, neither party shall be required to make any payment under this Section 8.5. (e) If this Agreement is terminated (i) by under circumstances in which Parent or the Company pursuant is entitled to Section 8.01(i) or (ii) by Buyer pursuant to Section 8.01(e) or Section 8.01(g), then the Company shall promptly pay to Buyer an amount in cash equal to the sum of (A) $5,431,250 (the “Termination Fee”) plus (B) an amount not to exceed, in the aggregate, $2,607,000 for the out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts, and consultants, incurred by Buyer or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”, and together with receive the Termination Fee, (i) the “Liquidated Amount”). Payment of the Termination Fee required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds (A) prior to a termination of this Agreement by the Company under Section 8.01(i) and (B) within three Business Days after the date of termination of this Agreement by Buyer under Section 8.01(e) or Section 8.01(g). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides the Company with reasonable documentation of such Buyer Expenses. In the event that the Company shall fail obligation to pay the Termination Fee or any Buyer Expenses when due, shall survive the Company shall pay the costs and expenses (including legal fees and expenses) incurred in connection with any action, including the prosecution of any lawsuit or other legal action, taken to collect payment, together with interest on such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%. (c) Notwithstanding anything to the contrary in this Agreement, Buyer hereto expressly acknowledges and agrees that, with respect to any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(gand (ii) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the payment of the Liquidated Amount Termination Fee shall constitute liquidated damages with respect to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholders, with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge thatParent or the Company, as applicable, except in light the event of (A) a willful breach by the difficulty defaulting party of accurately determining actual damages with respect to the foregoing upon any termination provision of this Agreement pursuant or (B) an intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the party entitled to Section 8.01(i)the Termination Fee shall have all rights, Section 8.01(e)powers and remedies against the other party that may be available at law or in equity. All rights, powers and remedies provided under this Agreement or Section 8.01(g) otherwise available in circumstances where respect hereof at law or in equity shall be cumulative and not alternative, and the Liquidated Amount is payable in accordance with Section 8.02(b), the rights to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason exercise of any such proposed right, power or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), remedy by any Party shall not preclude the simultaneous or Section 8.01(g); and (ii) shall be in full and complete satisfaction later exercise of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b)other such right, Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), power or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, and (B) be entitled to seek or obtain any other damages of any kind, including consequential, indirect, or punitive damagesremedy by such Party.

Effect of Termination; Termination Fee. (a) Subject to Section 8.02(bExcept as set forth in Sections 8.1(c), in 8.1(d) and 8.1(e), any termination of this Agreement under Section 8.1 above will be effective immediately upon the delivery of written notice of the terminating Party to the other parties hereto. In the event of the termination of this Agreement pursuant to as provided in Section 8.018.1, this Agreement shall forthwith become null and void and have be of no further force or effect, without any liability on the part of Buyer or the Company and their respective directors, officers, employees, partners, managers, members, or stockholders and all rights and obligations of each Party shall cease, except for the agreements contained in Sections 6.08, 8.02, and Article IX; provided, however, that nothing contained (a) as set forth in this Section 8.02 8.2 and Article IX (general provisions, including expenses), each of which shall relieve either Party from liabilities or damages arising out survive the termination of any fraud or willful breach by such Party of any of its representations, warranties, or covenants contained in this Agreement. , and (b) If nothing herein shall relieve any Party from liability for any willful breach of this Agreement is terminated (i) by the Company pursuant to Section 8.01(i) or (ii) by Buyer pursuant to Section 8.01(e) or Section 8.01(g), then the Company shall promptly pay to Buyer an amount in cash equal to the sum of (A) $5,431,250 (the “Termination Fee”) plus (B) an amount not to exceed, in the aggregate, $2,607,000 for the out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts, and consultants, incurred by Buyer or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance Agreement. No termination of this Agreement and shall affect the transactions contemplated hereby (the “Buyer Expenses”, and together with the Termination Fee, the “Liquidated Amount”). Payment obligations of the Termination Fee required by parties contained in the Confidentiality Agreement, all of which obligations shall survive termination of this Section 8.02(b) shall be payable by Agreement. In the Company to Buyer by wire transfer event of immediately available funds (A) prior to a termination of this Agreement by the Company under pursuant to Section 8.01(i) 8.1(e), the Company shall pay Parent a termination fee of $3,000,000.00 at the time of such termination, and (B) within three Business Days after such termination shall not be effective until the date termination fee has been paid. In the event of a termination of this Agreement by Buyer under the Company pursuant to Section 8.01(e8.1(b)(i) (other than as a result of Parent’s failure to satisfy the conditions set forth in Sections 6.1(a), (b), (c), (e) or Section 8.01(g(h). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable and a Superior Proposal has been received by the Company prior to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides such termination and the Company with reasonable documentation enters in a definitive agreement relating to such Superior Proposal within six (6) months of such Buyer Expenses. In the event that the Company shall fail to pay the Termination Fee or any Buyer Expenses when duetermination, then the Company shall pay Parent a termination fee of $3,000,000.00, such fee to be paid at the costs and expenses (including legal fees and expenses) incurred in connection with any action, including the prosecution time of any lawsuit or other legal action, taken to collect payment, together with interest on execution of such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%definitive agreement. (c) Notwithstanding anything to the contrary in this Agreement, Buyer hereto expressly acknowledges and agrees that, with respect to any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the payment of the Liquidated Amount shall constitute liquidated damages with respect to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholders, with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the rights to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g); and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b), Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, and (B) be entitled to seek or obtain any other damages of any kind, including consequential, indirect, or punitive damages.

Effect of Termination; Termination Fee. If this Agreement is validly terminated pursuant to Section 8.1, there will (a) Subject be no liability or obligation on the part of Seller or Buyer (or any of their respective Representatives or Affiliates), except as provided in this Section 8.2. Regardless of the reason for termination, Section 5.4(d), Section 5.18, (b) Section 5.19, Section 7.7, Section 8.2, Section 8.2(d), Section 8.3 and Article IX (and, in each case the applicable definitions and rules of interpretation set forth in Article I) will survive any termination of this Agreement. Upon termination of this Agreement by either Party for any reason, each (c) Party shall return or destroy, in accordance with the terms of the Confidentiality Agreements and Section 5.18, all documents and other materials provided by the other Party relating to the Acquired Assets, the Assumed Liabilities, the Facilities or to this Agreement, the Related Agreements or the transactions contemplated hereby or thereby, including any information relating to the Parties to this Agreement, whether obtained before or after the execution of this Agreement, and all information received by Buyer with respect to Seller, the Acquired Assets, the Assumed Liabilities, the Facilities, this Agreement, the Related Agreements or otherwise respecting the transactions contemplated hereby shall remain subject to the terms of the Confidentiality Agreements and Section 5.18. If this Agreement is terminated by Buyer pursuant to Section 8.02(b8.1(a) (d) (arising out of a failure of Seller to comply in all material respects with its obligations under this Agreement) or Section 8.1(c), and such failure to comply is through no fault of Buyer, and provided that Buyer has complied in all material respects with its obligations under this Agreement, Buyer shall be entitled to recover from Seller all costs incurred by Buyer in connection with the preparation, negotiation and execution of this Agreement or recovery of damages from Seller, including attorneys’ fees and expenses of financial and other advisors. In Public Service Company of New Hampshire dba Eversource Energy Docket DE 17-124 October 12, 2017 Attachment 2 Page 88 of 159 000225 EXECUTION VERSION addition to the foregoing damages (and not in lieu thereof), if such termination by Buyer occurs after January 1, 2018, Buyer is entitled to its loss of bargain, cost of funding or, at the election of Buyer but without duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position (or any gain resulting from any of them) of Buyer relating to any of the Facilities. If this Agreement is terminated by Seller pursuant to Section 8.1(a) (e) (arising out of a failure by Buyer to pay the Purchase Price and make its other Closing deliverables under this Agreement after all of Buyer’s conditions precedents to proceed to Closing have been satisfied) or Section 8.1(b), and such failure to comply is through no fault of Seller, and provided that Seller has complied in all material respects with its obligations under this Agreement, then, and in lieu of any other rights or remedies Seller may have at law or in equity, (i) Buyer hereby agrees to immediately pay to Seller, as liquidated damages (and not a penalty), an amount equal to Twenty-Six Million Two Hundred Fifty Dollars ($26,250,000) in immediately available funds and (ii) Seller shall have the right to immediately seek such relief from the guarantors under the Guaranty to satisfy such payment obligation. The Parties acknowledge and agree that the provisions for payment of liquidated damages in this Section 8.2(d) have been included because, in the event of the termination of this Agreement pursuant to Section 8.018.1(a) or Section 8.1(b), this Agreement shall forthwith become null and void and have no effect, without any liability on the part actual damages to be incurred by Seller are reasonably expected to approximate the amount of Buyer or the Company and their respective directors, officers, employees, partners, managers, members, or stockholders and all rights and obligations of each Party shall cease, except for the agreements contained in Sections 6.08, 8.02, and Article IX; provided, however, that nothing contained liquidated damages set forth in this Section 8.02 shall relieve either Party from liabilities or 8.2(d) and because the actual amount of such damages arising out would be difficult if not impossible to measure and prove precisely. The Parties therefore expressly intend to liquidate damages in advance in accordance with this Section 8.2(d), and, without limiting the generality of any fraud or willful breach by such Party the foregoing, acknowledge and agree that the amount of any of its representations, warranties, or covenants contained liquidated damages set forth in this Agreement. (bSection 8.2(d) If this Agreement is terminated (i) by the Company pursuant to Section 8.01(i) or (ii) by Buyer pursuant to Section 8.01(e) or Section 8.01(g), then the Company shall promptly pay to Buyer an amount in cash equal reasonable and is not greatly disproportionate to the sum presumable loss or injury of (A) $5,431,250 (the “Termination Fee”) plus (B) an amount not to exceed, Seller in the aggregate, $2,607,000 for the out-of-pocket expenses event of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts, and consultants, incurred by Buyer or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”, and together with the Termination Fee, the “Liquidated Amount”). Payment of the Termination Fee required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds (A) prior to a termination of this Agreement by the Company under Section 8.01(i) and (B) within three Business Days after the date of termination of this Agreement by Buyer under Section 8.01(e) or Section 8.01(g). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides the Company with reasonable documentation of such Buyer Expenses. In the event that the Company shall fail to pay the Termination Fee or any Buyer Expenses when due, the Company shall pay the costs and expenses (including legal fees and expenses) incurred in connection with any action, including the prosecution of any lawsuit or other legal action, taken to collect payment, together with interest on such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%. (c) Notwithstanding anything to the contrary in this Agreement, Buyer hereto expressly acknowledges and agrees that, with respect to any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), 8.1(a) or Section 8.01(g8.1(b). Buyer acknowledges that the agreements contained in this Section 8.2(d) in circumstances where are an integral part of the Liquidated Amount is payable transactions contemplated by this Agreement and that, without these agreements, Seller would not enter into this Agreement. The Parties acknowledge and agree that (A) Seller shall be entitled to pursue either payment of liquidated damages in accordance with this Section 8.02(b), the payment of the Liquidated Amount shall constitute liquidated damages with respect 8.2(d) or to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholders, with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursue specific performance pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the rights to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g); and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b), Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, 8.3 and (B) Seller may, in its sole discretion, elect to receive either an award of liquidated damages in accordance with this Section 8.2(d) or seek judgment awarding specific performance pursuant to Section 8.3; provided, that the Parties acknowledge and agree that under no circumstance shall Seller be entitled to seek or obtain any other receive both payment of liquidated damages of any kind, including consequential, indirect, or punitive damagesin accordance with this Section 8.2(d) and specific performance pursuant to Section 8.3.

Effect of Termination; Termination Fee. (a) Subject to Except as set forth in this Section 8.02(b)8.5, in the event of the termination of this Agreement pursuant to Section 8.01by either Parent or the Company as provided in this Article VIII, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability or obligation on the part of Buyer the Parties or the Company and their respective directorsaffiliates, officers, employeesdirectors or shareholders except (x) with respect to the treatment of confidential information pursuant to Section 6.6, partners, managers, members, or stockholders and all rights and obligations the payment of each Party shall cease, except for the agreements contained in Sections 6.08, 8.02expenses pursuant to Section 9.1, and Article IX; providedIX generally, however, (y) to the extent that nothing contained in this Section 8.02 shall relieve either Party such termination results from liabilities or damages arising out of any fraud or the willful breach by such of a Party of any of its representations, representations or warranties, or any of its covenants contained or agreements or (z) with respect to any intentional or knowing misrepresentations in connection with or pursuant to this AgreementAgreement or the transactions contemplated hereby. (b) In the event that (i) this Agreement is terminated by either the Company or Parent (x) pursuant to Section 8.2(a) due to the Company Shareholders Meeting not occurring as a result of a Company Acquisition Proposal or (y) pursuant to Section 8.2(c), or (ii) this Agreement is terminated by Parent pursuant to Sections 8.4(a), 8.4(b) or 8.4(c), then the Company shall promptly, but in no event later than the date of such termination, pay Parent a fee equal to $2,000,000 (the "Termination Fee"), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.5(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) In the event that this Agreement is terminated by the Company pursuant to Sections 8.3(a) or 8.3(b), then Parent shall promptly, but in no event later than the date of such termination, pay the Company a fee equal to the Termination Fee, payable by wire transfer of same day funds. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement, and accordingly, if Parent fails promptly to pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee set forth in this Section 8.5(b), Parent shall pay to the Company its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (d) In the event both Parent and the Company would otherwise be entitled to receive the Termination Fee under this Section 8.5 in connection with the termination of this Agreement, neither party shall be required to make any payment under this Section 8.5. (e) If this Agreement is terminated (i) by under circumstances in which Parent or the Company pursuant is entitled to Section 8.01(i) or (ii) by Buyer pursuant to Section 8.01(e) or Section 8.01(g), then the Company shall promptly pay to Buyer an amount in cash equal to the sum of (A) $5,431,250 (the “Termination Fee”) plus (B) an amount not to exceed, in the aggregate, $2,607,000 for the out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts, and consultants, incurred by Buyer or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”, and together with receive the Termination Fee, (i) the “Liquidated Amount”). Payment of the Termination Fee required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds (A) prior to a termination of this Agreement by the Company under Section 8.01(i) and (B) within three Business Days after the date of termination of this Agreement by Buyer under Section 8.01(e) or Section 8.01(g). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides the Company with reasonable documentation of such Buyer Expenses. In the event that the Company shall fail obligation to pay the Termination Fee or any Buyer Expenses when due, shall survive the Company shall pay the costs and expenses (including legal fees and expenses) incurred in connection with any action, including the prosecution of any lawsuit or other legal action, taken to collect payment, together with interest on such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%. (c) Notwithstanding anything to the contrary in this Agreement, Buyer hereto expressly acknowledges and agrees that, with respect to any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(gand (ii) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the payment of the Liquidated Amount Termination Fee shall constitute liquidated damages with respect to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholders, with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge thatParent or the Company, as applicable, except in light the event of (A) a willful breach by the difficulty defaulting party of accurately determining actual damages with respect to the foregoing upon any termination provision of this Agreement pursuant or (B) an intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the party entitled to Section 8.01(i)the Termination Fee shall have all rights, Section 8.01(e)powers and remedies against the other party that may be available at law or in equity. All rights, powers and remedies provided under this Agreement or Section 8.01(g) otherwise available in circumstances where respect hereof at law or in equity shall be cumulative and not alternative, and the Liquidated Amount is payable in accordance with Section 8.02(b), the rights to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason exercise of any such proposed right, power or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), remedy by any Party shall not preclude the simultaneous or Section 8.01(g); and (ii) shall be in full and complete satisfaction later exercise of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b)other such right, Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), power or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, and (B) be entitled to seek or obtain any other damages of any kind, including consequential, indirect, or punitive damagesremedy by such Party.

Effect of Termination; Termination Fee. (a) Subject to Section 8.02(b), in In the event of the termination of this Agreement pursuant to Section 8.01this Article VII, this Agreement shall forthwith become null and void and have there shall be no effect, without any liability on the part of Buyer any party to this Agreement or the Company and their respective directorsits partners, officers, employees, partners, managers, members, directors or stockholders and all rights and obligations of each Party shall ceasestockholders, except for the agreements contained in Sections 6.08obligations under Section 4.9 (Public Announcements), 8.02Section 8.2 (Fees and Expenses), Section 8.3 (Attorneys’ Fees), Section 8.4 (Waiver; Amendment), Section 8.5 (Entire Agreement), Section 8.7 (Execution of Agreement; Counterparts; Electronic Signatures), Section 8.8 (Governing Law; Jurisdiction and Venue), Section 8.9 (Waiver of Jury Trial), Section 8.10 (Assignment and Successors), Section 8.12 (Notices), Section 8.13 (Construction; Usage), Section 8.14 (Enforcement of Agreement), Section 8.15 (Severability), this Section 7.2, and Article IX; providedthe definitions used in each of the foregoing sections, howeverincluding those set forth on Exhibit A attached hereto, that all of which shall survive the Termination Date. Notwithstanding the foregoing, nothing contained in this Section 8.02 herein shall relieve either Party any party from liabilities or damages arising out liability for any breach hereof. Upon termination of any fraud or willful breach by such Party of any of its representations, warranties, or covenants contained in this Agreement. , each of the parties shall, in all events, be bound by and be subject to that certain Mutual Non-Disclosure Agreement executed on November 5, 2012 by and between Parent and the Company (bthe “Non-Disclosure Agreement”). Parent agrees to pay the Company an amount equal to Three Hundred Fifty Thousand Dollars ($350,000) If (the “Termination Fee”) if this Agreement is terminated terminated: (ia) by the Company pursuant to Section 8.01(i) or 7.1(e); (iib) by Buyer Parent pursuant to Section 8.01(e7.1(f); (c) by the Company pursuant to Section 7.1(c) or Section 8.01(g), then the Company shall promptly pay to Buyer an amount in cash equal to the sum of (A7.1(d) $5,431,250 (the “Termination Fee”) plus (B) an amount not to exceedand, in either case, (x) on or before the aggregatedate of any such termination an Acquisition Proposal shall have been announced, $2,607,000 for the out-of-pocket expenses disclosed, or otherwise communicated to Parent’s board of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, expertsdirectors, and consultants, incurred (y) a definitive agreement is entered into by Buyer Parent with respect to an Acquisition Transaction or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance an Acquisition Transaction is consummated within 18 months of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”, and together with the Termination Fee, the “Liquidated Amount”). Payment of the Termination Fee required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds (A) prior to a such termination of this Agreement by the Company under Section 8.01(i) and (B) within three Business Days after the date of termination of this Agreement by Buyer under Section 8.01(e) or Section 8.01(g). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides the Company with reasonable documentation of such Buyer Expenses. In the event that the Company shall fail to pay the Termination Fee or any Buyer Expenses when due, the Company shall pay the costs and expenses (including legal fees and expenses) incurred in connection with any action, including the prosecution of any lawsuit or other legal action, taken to collect payment, together with interest on such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%Agreement. (c) Notwithstanding anything to the contrary in this Agreement, Buyer hereto expressly acknowledges and agrees that, with respect to any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the payment of the Liquidated Amount shall constitute liquidated damages with respect to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholders, with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the rights to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g); and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b), Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, and (B) be entitled to seek or obtain any other damages of any kind, including consequential, indirect, or punitive damages.

Effect of Termination; Termination Fee. (a) Subject to Section 8.02(b), in the event of the Upon a termination of this Agreement by a Party pursuant to Section 8.0111.1, then such Party shall promptly give notice to the other Party specifying the provision hereof pursuant to which such termination is made, and upon delivery of such notice this Agreement shall forthwith become null and void and have no effect, without any liability on the part of Buyer or the Company and their respective directorsother than each Party’s obligations under Section 7.5 (Public Announcements), officersSection 7.6 (Confidentiality), employees, partners, managers, members, or stockholders and all rights and obligations of each Party shall cease, except for the agreements contained in Sections 6.08, 8.02, Article XI (Termination) and Article IX; providedXII (Miscellaneous), howevereach of which shall survive the termination hereof. Notwithstanding the foregoing, that subject to Section 11.2(b), nothing contained in this Section 8.02 11.2 shall relieve either be deemed to release any Party from liabilities any Liability for any intentional breach or damages arising out of any intentional fraud or willful breach by such Party of any the terms and provisions of its representations, warranties, or covenants contained in this AgreementAgreement occurring before such termination. (b) If this Agreement is terminated (i) by the Company Seller pursuant to Section 8.01(i) or 11.1(d), (ii) by Buyer or Seller pursuant to Section 8.01(e11.1(a) or Section 8.01(g11.1(c), then in each case, at a time when all conditions set forth in Article V are satisfied (other than the Company shall conditions set forth in Section 5.1(c) and/or Section 5.1(e) and Section 5.2(d) and/or Section 5.2(f) solely as a result of Calpine Corporation or its Subsidiaries’ acquisition of (or agreement to acquire) any assets, property or securities related to retail natural gas marketing between the date hereof and the Closing), or (iii) by Seller pursuant to Section 11.1(f), then, notwithstanding any other provision of this Agreement, Buyer hereby agrees to pay promptly pay to Buyer Seller, and in any event within five (5) Business Days of delivery of the notice of termination contemplated by Section 11.2(a), as liquidated damages (and not a penalty) in connection with any such termination, in immediately available funds to one or more accounts specified by Seller, an amount in cash equal to the sum of (A) $5,431,250 20,000,000 (the “Termination Fee”). The provisions for the payment of the Termination Fee in this Section 11.2(b) plus have been included because, in the event of termination of this Agreement pursuant to the first sentence of this Section 11.2(b), the actual damages to be incurred by Seller would be difficult if not impossible to measure precisely. Buyer acknowledges that the agreements contained in this Section 11.2(b) are an integral part of the transactions contemplated by this Agreement and by the other Transaction Documents, or any Action, based on, in respect of, or by reason of any of the foregoing. The Parties acknowledge and agree that payment of the Termination Fee and such other amounts payable (if any) pursuant to Section 7.15(c) and any Enforcement Expenses (in each case, to the extent due and subject to the Expenses Cap) by or on behalf of Buyer shall be the sole and exclusive remedy available to Seller, the Company, and their respective Subsidiaries, Affiliates and Representatives against Buyer, the Buyer Guarantor and their Affiliates and Representatives for any matter under, relating to or arising out of, the termination of this Agreement or any other Transaction Document, whether based on Contract, tort, strict liability, other Applicable Laws or otherwise, or any Action, based on, in respect of, or by reason of any of the foregoing. Upon payment of the Termination Fee and such other amounts payable hereunder (if any) pursuant to Section 7.15(c) and any Enforcement Expenses (in each case, to the extent due and subject to the Expenses Cap), none of Buyer, Buyer Guarantor or their Affiliates and Representatives shall have any Liability or obligation, and Seller, the Company and their respective Subsidiaries, Affiliates and Representatives shall not otherwise file any Action, for any matter under, relating to or arising out of, the termination of this Agreement or any other Transaction Document, whether based on Contract, tort, strict liability, other Applicable Laws or otherwise, or any Action, based on, in respect of, or by reason of any of the foregoing. If Buyer fails to promptly pay the Termination Fee when due (A) Buyer shall additionally pay to Seller interest on the amount of the Termination Fee from the date such payment was required to be made until the date of payment at a rate per annum equal to the prime rate for commercial loans as published by the Wall Street Journal in effect on the date of termination and (B) an amount not to exceedif, in the aggregateorder to obtain such payment, $2,607,000 Seller commences an Action that results in a judgment against Buyer, Buyer shall reimburse Seller for the its reasonable and documented costs and expenses (including reasonable and documented external attorneys’ fees and expenses and other out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts, and consultants, incurred by Buyer or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”, and together with the Termination Fee, the “Liquidated Amount”). Payment of the Termination Fee required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds (A) prior to a termination of this Agreement by the Company under Section 8.01(i) and (B) within three Business Days after the date of termination of this Agreement by Buyer under Section 8.01(e) or Section 8.01(g). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides the Company with reasonable documentation of such Buyer Expenses. In the event that the Company shall fail to pay the Termination Fee or any Buyer Expenses when due, the Company shall pay the costs and expenses (including legal fees and expensespaid to independent third parties) incurred in connection with any actionsuch Action (such amounts payable under the foregoing clauses (A) and (B), including collectively, the prosecution of any lawsuit or other legal action“Enforcement Expenses”); provided, taken to collect paymentthat, together with interest on such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%. (c) Notwithstanding notwithstanding anything to the contrary in this Agreement, the aggregate amount of all amounts to be paid by Buyer hereto expressly acknowledges pursuant to Section 7.15(c) and agrees thatthe Enforcement Expenses shall not exceed in the aggregate $2,000,000 (the “Expenses Cap”). In no event shall the aggregate amount of (A) Buyer’s and Buyer Guarantor’s aggregate Liability upon a termination of this Agreement and the other Transaction Documents, with respect whether by payment of the Termination Fee or other damages, exceed an amount equal to the Termination Fee plus any amounts due pursuant to Section 7.15(c) and any Enforcement Expenses (in each case, to the extent due and subject to the Expenses Cap) and (B) Seller’s aggregate Liability upon a termination of this Agreement and the other Transaction Documents exceed an amount equal to $22,000,000. (c) Prior to any termination of this Agreement pursuant Agreement, Seller shall be entitled to pursue specific performance as provided in Section 8.01(i)12.5; provided, Section 8.01(e), that the Parties acknowledge and agree that under no circumstance shall (i) Seller or Section 8.01(g) in circumstances where the Liquidated Amount is payable Company be entitled to receive both payment of the Termination Fee in accordance with Section 8.02(b), the payment of the Liquidated Amount shall constitute liquidated damages with respect to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholders, with respect to this Agreement 11.2(b) and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement specific performance pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the rights to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g); 12.5 and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b), Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of Buyer Guarantor under the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, and (BBuyer Guaranty) be entitled required to seek or obtain any other damages of any kind, including consequential, indirect, or punitive damagespay the Termination Fee on more than one occasion.

Effect of Termination; Termination Fee. (a) Subject In the event that this Agreement is validly terminated in accordance with Section 9.1, then each of the parties hereto will be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination will be without Liability to Section 8.02(b)the Buyer, Buyer Parent, Seller Parent or Seller; provided that: (i) in the event of the termination of this Agreement pursuant to Section 8.01, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of Buyer or the Company and their respective directors, officers, employees, partners, managers, members, or stockholders and all rights and obligations of each Party shall cease, except for the agreements contained in Sections 6.08, 8.02, and Article IX; provided, however, that nothing contained in this Section 8.02 shall relieve either Party from liabilities or damages arising out of any fraud or willful breach by such Party of any of its representations, warranties, or covenants contained in this Agreement. (b) If this Agreement is terminated (i) by the Company pursuant to Section 8.01(i) Seller or (ii) by the Buyer pursuant to (A) Section 8.01(e9.1(b) related to a breach by the Buyer of the covenants in Section 5.9, (B) Section 9.1(c) if at the time of such termination all of the conditions set forth in Section 7.1, Section 7.2 and Section 7.3 have been satisfied or waived, other than the conditions (x) set forth in Section 7.1(a) (if such Closing Legal Impediment arises under Antitrust Law), Section 7.1(b) or Section 8.01(g7.3(f) and (y) that by their nature are to be satisfied by actions to be taken at Closing (but such conditions are otherwise then capable of being satisfied or (C) Section 9.1(d) (if such Closing Legal Impediment arises under Antitrust Law), then the Company Buyer shall promptly pay to Buyer an amount in cash equal to the sum Seller a non-refundable termination fee, without offset or reduction of any kind, within three (A3) $5,431,250 (the “Termination Fee”) plus (B) an amount not to exceed, in the aggregate, $2,607,000 for the out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts, and consultants, incurred by Buyer or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”, and together with the Termination Fee, the “Liquidated Amount”). Payment Business Days of the Termination Fee required by this Section 8.02(b) shall be payable by the Company to Buyer date of such termination by wire transfer of immediately available funds to an account designated in writing by the Seller, in an amount in cash (Athe “Regulatory Termination Amount”) equal to Fifteen Million Dollars ($15,000,000); and (ii) no such termination will relieve any party hereto from Liability for any material breach of its covenants or agreements hereunder on or prior to a termination of this Agreement by the Company under Section 8.01(i) and (B) within three Business Days after the date of termination pursuant to Section 9.1 (other than in the case of breach or alleged breach of Section 5.9 or Section 5.17 (to the extent relating to Antitrust Laws) by the Buyer (which shall, except with respect to any intentional breach of Section 5.9(a) or the final sentence of Section 5.9(b), instead be subject exclusively to the terms and conditions of Section 9.2(a)(i))). (b) The parties hereto acknowledge that the agreements contained in this Section 9.2 are an integral part of the transactions contemplated by this Agreement by Buyer under Section 8.01(e) or Section 8.01(g). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides the Company with reasonable documentation of such Buyer Expenses. In the event that the Company shall fail to pay the Termination Fee or any Buyer Expenses when dueand that, without these agreements, the Company shall pay the costs and expenses (including legal fees and expenses) incurred in connection with any action, including the prosecution of any lawsuit or other legal action, taken to collect payment, together with interest on such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%parties hereto would not enter into this Agreement. (c) Notwithstanding anything The parties hereto acknowledge that payment of the Regulatory Termination Amount, if, as and when required pursuant to this Section 9.2, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the contrary Seller receiving such amount in the circumstances in which the Regulatory Termination Amount is payable for the efforts and resources expended and opportunities foregone while negotiating this AgreementAgreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, Buyer hereto expressly acknowledges which amount would otherwise be impossible to calculate with precision. The Regulatory Termination Amount shall be the sole and agrees that, with respect to exclusive remedy of the Seller and its Affiliates for any termination of this Agreement pursuant to (x) Section 8.01(i9.1(b) related to a breach by the Buyer of the covenants in Section 5.9(b), (y) Section 8.01(e)9.1(c) or (z) Section 9.1(d); provided, or Section 8.01(gthat the foregoing limitation shall not apply (i) in circumstances where the Liquidated case of any such breach of Section 5.9(a) or the final sentence of Section 5.9(b) that is intentional, (ii) in the case of failure to pay the Regulatory Termination Amount is payable in accordance with Section 8.02(b), when due and owing hereunder or (iii) for the payment avoidance of the Liquidated Amount shall constitute liquidated damages with respect to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholdersdoubt, with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge that, in light rights of the difficulty of accurately determining actual damages with respect parties hereto to seek specific performance pursuant to Section 10.13 prior to the foregoing upon termination of this Agreement. (d) Notwithstanding Section 9.1(c), this Section 9.2, together with the following sections, will survive any termination of this Agreement pursuant to and will be enforceable hereunder: Section 8.01(i)5.8, Section 8.01(e)5.14, or Section 8.01(g) this Article IX, including, in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b)each case, the rights definitions and interpretative matters contained in Article X to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any extent applicable to such proposed or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g); and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b), Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, and (B) be entitled to seek or obtain any other damages of any kind, including consequential, indirect, or punitive damagesprovisions.