Common use of Expenses; Termination Payment Clause in Contracts

Expenses; Termination Payment. (a) Except as otherwise provided in the Separation and Distribution Agreement or this Agreement, including this Section 10.3, and except for (i) the expenses in connection with printing and mailing the securities filings and the disclosure documents required in connection with the transactions contemplated in this Agreement, including the actions specified in Section 8.5, (ii) all SEC filing fees relating to the transactions contemplated by this Agreement and (iii) the fees in connection with the approvals required under Section 8.7(a) related to the Combination (each of which fees and expenses in clauses (i) through (iii) shall be borne, in each case, (A) equally by Utah and Pluto in the event that this Agreement is terminated in accordance with its terms or (B) by Spinco in the event that the Closing occurs), all fees and expenses incurred by the Parties shall be borne solely by the Party that has incurred such fees and expenses. (b) Utah shall pay to Pluto, by way of compensation, $322 million (the “Termination Payment”), by wire transfer of immediately available funds (in U.S. dollars) to an account or accounts specified by Pluto, if this Agreement is terminated as follows: (i) if this Agreement is terminated pursuant to Section 10.1(g), then Utah shall pay, or cause to be paid, the entire Termination Payment on the third (3rd) Business Day following such termination; or (ii) (x) if this Agreement is terminated pursuant to Section 10.1(e) as a result of a Willful Breach of Section 8.11, and (y) within twelve (12) months after the date of such termination, a Competing Proposal is consummated or Utah enters into a definitive written agreement in respect of a Competing Proposal, then Utah shall be obligated to pay the Termination Payment on the third (3rd) Business Day following the earlier of the date Utah enters into a definitive agreement in respect of or consummates such Competing Proposal; provided that, solely for purposes of this Section 10.3(b)(ii), the term “Competing Proposal” shall have the meaning set forth in Section 8.11(f)(i), except that all references to 15% shall be changed to 50%. (iii) (x) if this Agreement is terminated pursuant to Section 10.1(f) or Section 10.1(e) as a result of a breach of Section 8.6, (y) prior to such termination, a Competing Proposal shall have been publicly announced or otherwise becomes publicly known (or, in the case of a Willful Breach of Section 8.6, a Competing Proposal shall have been communicated to the Board of Directors of Utah), and, other than in the case of a termination pursuant to Section 10.1(e) as a result of a Willful Breach of Section 8.6, such Competing Proposal that has been publicly announced or otherwise becomes publicly known shall not have been publicly withdrawn at least seven (7) days prior to the Utah Shareholders Meeting, and (z) within twelve (12) months after the date of such termination, a Competing Proposal is consummated or Utah enters into a definitive written agreement in respect of a Competing Proposal (which need not be the same Competing Proposal referred to in clause (y)), then Utah shall be obligated to pay the Termination Payment on the third (3rd) Business Day following the earlier of the date Utah enters into a definitive agreement in respect of or consummates such Competing Proposal; provided that, solely for purposes of this Section 10.3(b)(ii), the term “Competing Proposal” shall have the meaning set forth in Section 8.11(f)(i), except that all references to 15% shall be changed to 50%. (c) In the event this Agreement is terminated by either Pluto or Utah pursuant to Section 10.1(f), then Utah shall pay to Pluto (by wire transfer of immediately available funds promptly following delivery by Pluto to Utah of a written statement setting forth the amount of the Pluto Expenses, including specifying the portion of Pluto Expenses paid to each vendor on a vendor-by-vendor basis), all reasonable out-of-pocket costs, fees and expenses incurred by Pluto in connection with this Agreement and the transactions contemplated by this Agreement but excluding all such costs, fees and expenses incurred by Pluto prior to May 2, 2019 (the “Pluto Expenses”); provided that Utah shall not be obligated to pay the Pluto Expenses in excess of $96 million; provided, further, that any payment of the Pluto Expenses shall not affect Pluto’s right to receive any Termination Payment otherwise due under Section 10.3(b), but shall reduce, on a dollar-for-dollar basis, any Termination Payment that becomes due and payable under Section 10.3(b). (d) In the event of the valid termination of this Agreement in accordance with this Article X under circumstances in which the Termination Payment is payable pursuant to this Section 10.3, it is agreed that the Termination Payment is liquidated damages and by way of compensation, and not a penalty. Except with respect to claims resulting from fraud by the Utah Parties, payment of any Termination Payment shall constitute the sole and exclusive remedy of Pluto and the Spinco Parties against the Utah Parties, their respective Subsidiaries and Affiliates, the Spinco Lenders, the Lender Related Parties and each of their respective Representatives, in circumstances where the Termination Payment is payable under this Agreement and the Termination Payment is paid; provided, however, that, in circumstances where the Termination Payment is payable under this Agreement and Utah has committed a Willful Breach of this Agreement, Pluto and the Spinco Parties may elect, no later than the date the Termination Payment is due, to forgo the Termination Payment and instead pursue a claim for damages under this Agreement. Each Party agrees that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if Utah fails to pay any amounts due under this Section 10.3 and, in order to obtain such payment, Pluto commences a suit that results in a judgment against Utah for such amounts, Utah shall pay interest on such amounts from the date payment of such amounts was due to the date of actual payment at a rate per annum equal to the Prime Rate in effect from time to time for the relevant period, together with the costs and expenses of Pluto (including reasonable legal fees and expenses) in connection with such suit. (e) The Parties acknowledge and agree that in no event shall Utah be required to pay more than one Termination Payment, even if a Termination Payment may be payable under more than one provision of this Agreement at the same time or at different times and upon the occurrence of different events.

Expenses; Termination Payment. (a) Except as otherwise provided in the Separation and Distribution Agreement or this Agreement, including this Section 10.3, and except for (i) the expenses in connection with printing and mailing the securities filings and the disclosure documents required in connection with the transactions contemplated in this Agreement, including the actions specified in Section 8.58.4, (ii) all SEC filing fees relating to the transactions contemplated by this Agreement and Agreement, (iii) the fees in connection with the approvals required under Section 8.7(a) 8.6 related to the Combination Merger and (each iv) the Commitment Fees (including fees for prepayment in respect of which fees and expenses in clauses (i) through (iii) shall be borne, in each case, (A) equally by Utah and Pluto in the event that this Agreement is terminated in accordance with its terms or (B) by Spinco in the event that the Closing occursany incurred Financing), all fees and expenses incurred by the Parties shall be borne solely by the Party that has incurred such fees and expenses. The fees and expenses in clauses (i) through (iii) above shall be borne, in each case, equally by Remainco and RMT Partner in the event that this Agreement is terminated in accordance with its terms or if the Closing occurs. The fees and expenses in clause (iv) above shall be borne (A) entirely by Spinco if the Closing occurs, and (B) equally by Remainco and RMT Partner if the Agreement terminates; provided that (1) if this Agreement is terminated by RMT Partner pursuant to Section 10.1(d), the fees and expenses in clause (iv) shall be borne entirely by Remainco, and (2) if this Agreement is terminated by Remainco pursuant to Section 10.1(e), the fees and expenses in clause (iv) shall be borne entirely by RMT Partner. (b) Utah RMT Partner shall pay to PlutoRemainco, by way of compensation, $322 521.5 million (the “Termination Payment”), by wire transfer of immediately available funds (in U.S. dollars) to an account or accounts specified by PlutoRemainco, if this Agreement is terminated as follows: (i) if this Agreement is terminated pursuant to Section 10.1(g) or Section 10.1(h), then Utah RMT Partner shall pay, or cause to be paid, the entire Termination Payment on the third (3rd) Business Day following such termination; or (ii) if (x) if this Agreement is terminated (1) by Remainco or RMT Partner pursuant to (A) Section 10.1(c) or (B) Section 10.1(f) or (2) by Remainco pursuant Section 10.1(e), (y) as prior to such termination, in the case of subclause (x)(1)(B) of this clause (ii), a result Competing Proposal shall have been publicly announced or otherwise becomes publicly known after the date of this Agreement and prior to the RMT Partner Shareholder Approval, or, in the case of clause (x)(1)(A) and (x)(2) of this subclause (ii), a Willful Breach Competing Proposal shall have been publicly announced or otherwise becomes publicly known or shall have been communicated to the RMT Partner Board after the date of Section 8.11this Agreement and prior to such termination, and (yz) within on or prior to the date that is twelve (12) months after the date of such termination, a Competing Proposal is consummated or Utah RMT Partner enters into a definitive written agreement in respect of a Competing ProposalProposal (which need not be the same Competing Proposal referred to in clause (y)), then Utah RMT Partner shall be obligated to pay the Termination Payment on the third (3rd) Business Day following the earlier of the date Utah RMT Partner enters into a definitive agreement in respect of or consummates such Competing Proposal; provided that, solely for purposes of this Section 10.3(b)(ii), the term “Competing Proposal” shall have the meaning set forth in Section 8.11(f)(i8.10(e)(i), except that all references to 15% shall be changed to 50%. (iii) (x) if this Agreement is terminated pursuant to Section 10.1(f) or Section 10.1(e) as a result of a breach of Section 8.6, (y) prior to such termination, a Competing Proposal shall have been publicly announced or otherwise becomes publicly known (or, in the case of a Willful Breach of Section 8.6, a Competing Proposal shall have been communicated to the Board of Directors of Utah), and, other than in the case of a termination pursuant to Section 10.1(e) as a result of a Willful Breach of Section 8.6, such Competing Proposal that has been publicly announced or otherwise becomes publicly known shall not have been publicly withdrawn at least seven (7) days prior to the Utah Shareholders Meeting, and (z) within twelve (12) months after the date of such termination, a Competing Proposal is consummated or Utah enters into a definitive written agreement in respect of a Competing Proposal (which need not be the same Competing Proposal referred to in clause (y)), then Utah shall be obligated to pay the Termination Payment on the third (3rd) Business Day following the earlier of the date Utah enters into a definitive agreement in respect of or consummates such Competing Proposal; provided that, solely for purposes of this Section 10.3(b)(ii), the term “Competing Proposal” shall have the meaning set forth in Section 8.11(f)(i), except that all references to 15% shall be changed to 50%. (c) In the event this Agreement is terminated by either Pluto or Utah pursuant to Section 10.1(f), then Utah shall pay to Pluto (by wire transfer of immediately available funds promptly following delivery by Pluto to Utah of a written statement setting forth the amount of the Pluto Expenses, including specifying the portion of Pluto Expenses paid to each vendor on a vendor-by-vendor basis), all reasonable out-of-pocket costs, fees and expenses incurred by Pluto in connection with this Agreement and the transactions contemplated by this Agreement but excluding all such costs, fees and expenses incurred by Pluto prior to May 2, 2019 (the “Pluto Expenses”); provided that Utah shall not be obligated to pay the Pluto Expenses in excess of $96 million; provided, further, that any payment of the Pluto Expenses shall not affect Pluto’s right to receive any Termination Payment otherwise due under Section 10.3(b), but shall reduce, on a dollar-for-dollar basis, any Termination Payment that becomes due and payable under Section 10.3(b). (d) In the event of the valid termination of this Agreement in accordance with this Article X under circumstances in which the Termination Payment is payable pursuant to this Section 10.3, it is agreed that the Termination Payment is liquidated damages and by way of compensation, and not a penalty. Except with respect to claims resulting from fraud by the Utah Parties, payment of any Termination Payment shall constitute the sole and exclusive remedy of Pluto and the Spinco Parties against the Utah Parties, their respective Subsidiaries and Affiliates, the Spinco Lenders, the Lender Related Parties and each of their respective Representatives, in circumstances where the Termination Payment is payable under this Agreement and the Termination Payment is paid; provided, however, that, in circumstances where the Termination Payment is payable under this Agreement and Utah has committed a Willful Breach of this Agreement, Pluto and the Spinco Parties may elect, no later than the date the Termination Payment is due, to forgo the Termination Payment and instead pursue a claim for damages under this Agreement. Each Party agrees that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if Utah fails to pay any amounts due under this Section 10.3 and, in order to obtain such payment, Pluto commences a suit that results in a judgment against Utah for such amounts, Utah shall pay interest on such amounts from the date payment of such amounts was due to the date of actual payment at a rate per annum equal to the Prime Rate in effect from time to time for the relevant period, together with the costs and expenses of Pluto (including reasonable legal fees and expenses) in connection with such suit. (e) The Parties acknowledge and agree that in no event shall Utah be required to pay more than one Termination Payment, even if a Termination Payment may be payable under more than one provision of this Agreement at the same time or at different times and upon the occurrence of different events.

Expenses; Termination Payment. (a) Except as otherwise specifically provided in this Agreement (including under Section 14.03(b)), whether or not the Separation and Distribution Agreement or this Agreementtransactions contemplated hereby are consummated, including this Section 10.3Purchaser, Seller, and except Company each shall pay the costs and expenses incurred by such party in connection with the negotiation, execution and closing of this Agreement and the transactions contemplated hereby and thereby; provided however that any and all filing fees, if any, required under the HSR Act with respect to any and all HSR filings which may be required with respect to the transactions contemplated under this Agreement shall be shared and paid equally by Purchaser and Seller; and provided further, that each of the Seller Parties shall indemnify and hold harmless Purchaser and any Purchaser Indemnified Party, and promptly pay and reimburse Purchaser and any Purchaser Indemnified Party for (i) any and all Costs and Expenses incurred by Purchaser with respect to matters that are required or contemplated to be undertaken by Seller and/or Company under this Agreement or that are otherwise customarily undertaken by the expenses seller in connection with printing transactions of the type contemplated under this Agreement, and mailing Seller either fails or otherwise requests Purchaser to perform the securities filings same (provided that in no event shall Purchaser be obligated to do so), and the disclosure documents required (ii) any and all Losses (including any and all Costs and Expenses) incurred by Purchaser in connection with any claim or Actions or Proceedings arising out of this Agreement and/or any of the transactions contemplated in this Agreement, including the actions specified in Section 8.5, (ii) all SEC filing fees relating to the transactions contemplated by under this Agreement and (iiiall amounts for which Seller and/or Company may be responsible under this Section 14.03(a) may be credited against the fees in connection with Purchase Price at the approvals required under Section 8.7(a) related to the Combination (each of which fees and expenses in clauses (i) through (iii) Closing, provided however that nothing herein shall be borne, in each case, (A) equally by Utah and Pluto in deemed to limit the event that this Agreement is terminated in accordance with its terms Seller Parties’ Liability to Purchaser or (B) by Spinco in any of the event that Purchaser Indemnified Parties for such amounts if the Closing occursdoes not occur or for such amounts that remain or become due and payable thereafter), all fees and expenses incurred by the Parties shall be borne solely by the Party that has incurred such fees and expenses. (b) Utah shall pay to Pluto, by way Notwithstanding the provisions of compensation, $322 million Section 14.03(a), (i) in the “Termination Payment”), by wire transfer of immediately available funds (in U.S. dollars) to an account or accounts specified by Pluto, if event this Agreement is terminated as follows:by Purchaser pursuant to Section 12.01(c)(i), Section 12.01(f) or Section 12.01(h) or by Seller pursuant to Section 12.01(g) or Section 4.08(d) or by either or both of the Seller Parties in a manner that is not permitted under Section 12.01, the Seller Parties shall pay the Termination Payment to Purchaser within two (2) Business Days after such termination; (iii) if in the event this Agreement is terminated by Purchaser pursuant to Section 12.01(j) or Section 12.01(k) or by Purchaser or Seller pursuant to Section 12.01(b)(i), the Seller Parties shall pay up to Five Hundred Thousand Dollars ($500,000.00) of the Termination Costs and Expenses to Purchaser within two (2) Business Days after such termination; (iii) in the event (x) this Agreement is terminated pursuant to Section 10.1(g12.01(c)(ii) or Section 12.01(d), then Utah shall pay, or cause to be paid, the entire Termination Payment on the third (3rd) Business Day following such termination; or (ii) (x) if this Agreement is terminated pursuant to Section 10.1(e) as a result of a Willful Breach of Section 8.11, and (y) within twelve (12) months after the date of such termination, a Competing Proposal is consummated or Utah enters into a definitive written agreement in respect of a Competing Proposal, then Utah shall be obligated to pay the Termination Payment on the third (3rd) Business Day following the earlier of the date Utah enters into a definitive agreement in respect of or consummates such Competing Proposal; provided that, solely for purposes of this Section 10.3(b)(ii), the term “Competing Proposal” shall have the meaning set forth in Section 8.11(f)(i), except that all references to 15% shall be changed to 50%. (iii) (x) if this Agreement is terminated pursuant to Section 10.1(f) or Section 10.1(e) as a result of a breach of Section 8.6, (y) prior to such terminationthe Expiration Time, a Competing an Acquisition Proposal shall have been publicly announced or otherwise becomes publicly known (or, in the case of a Willful Breach of Section 8.6, a Competing Proposal shall have been communicated to the Board of Directors of Utah), and, other than in the case of a termination pursuant to Section 10.1(e) as a result of a Willful Breach of Section 8.6, such Competing Proposal that has been publicly announced proposed or otherwise becomes publicly known shall disclosed, and not have been publicly withdrawn at least seven (7) days prior to the Utah time of the Seller Shareholders Meeting, and (z) within twelve (12) 12 months after the date of such termination, a Competing Proposal is consummated termination Seller or Utah Company enters into a definitive written agreement in respect of a Competing relating to an Acquisition Proposal or consummates the transactions contemplated by such Acquisition Proposal with the Person (which need not be or its Affiliate) who made the same Competing Acquisition Proposal referred to in clause (y)) above (whether or not the terms and conditions (including the purchase price terms) of such definitive agreement or transactions contemplated therein is the same as or different from any Acquisition Proposal made prior to such termination), then Utah shall be obligated to pay in which case the Termination Payment on shall be paid by the third Seller Parties to Purchaser at the closing (3rdand as a condition for closing) Business Day following the earlier of the date Utah enters into a definitive agreement in respect of or consummates such Competing transactions contemplated by the Acquisition Proposal; provided that, solely for purposes of this Section 10.3(b)(ii), the term “Competing Proposal” shall have the meaning set forth in Section 8.11(f)(i), except that all references to 15% shall be changed to 50%.and (civ) In in the event this Agreement is terminated by either Pluto or Utah pursuant to Section 10.1(f)12.01(c)(ii) or Section 12.01(d) and, prior to such time, a Change of Recommendation shall have occurred for any reason other than in connection with an Acquisition Proposal, then Utah the Seller Parties shall pay the Termination Payment to Pluto Purchaser within two (by wire transfer of immediately available funds promptly following delivery by Pluto to Utah of a written statement setting forth 2) Business Days after such termination. (c) As used in this Agreement, “Termination Payment” means (x) Four Million Six Hundred Thousand and No/100 Dollars ($4,600,000.00) (the amount of the Pluto Expenses, including specifying the portion of Pluto Expenses paid to each vendor on a vendor-by-vendor basis), “Termination Fee”) plus (y) any and all reasonable out-of-pocket costs, fees costs and expenses incurred or paid by Pluto Purchaser and/or its Affiliates in connection with the negotiation, execution and closing of this Agreement and the transactions contemplated by this Agreement but excluding all such costshereby (collectively, fees and expenses incurred by Pluto prior to May 2, 2019 (the “Pluto Termination Costs and Expenses”); provided , including the following that Utah shall not be obligated to pay have been incurred or paid by Purchaser and/or any Affiliate of Purchaser in connection with the Pluto Expenses in excess of $96 million; provided, further, that any payment of the Pluto Expenses shall not affect Pluto’s right to receive any Termination Payment otherwise due under Section 10.3(b), but shall reduce, on a dollar-for-dollar basis, any Termination Payment that becomes due and payable under Section 10.3(b). (d) In the event of the valid termination of this Agreement in accordance with this Article X under circumstances in which the Termination Payment is payable pursuant to this Section 10.3, it is agreed that the Termination Payment is liquidated damages and by way of compensation, and not a penalty. Except with respect to claims resulting from fraud by the Utah Parties, payment of any Termination Payment shall constitute the sole and exclusive remedy of Pluto and the Spinco Parties against the Utah Parties, their respective Subsidiaries and Affiliates, the Spinco Lenders, the Lender Related Parties and each of their respective Representatives, in circumstances where the Termination Payment is payable under this Agreement and the Termination Payment is paid; provided, however, that, in circumstances where the Termination Payment is payable under this Agreement and Utah has committed a Willful Breach of this Agreement, Pluto and the Spinco Parties may elect, no later than the date the Termination Payment is due, to forgo the Termination Payment and instead pursue a claim for damages transactions contemplated under this Agreement. Each Party agrees that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement: any and all (i) Costs and Expenses, (ii) Governmental or Regulatory Authority applications, filings and thatregistrations fees and costs, without these agreements(iii) fees, the Parties would not enter into this Agreement. Accordingly, if Utah fails to pay any amounts due under this Section 10.3 and, in order to obtain such payment, Pluto commences a suit that results in a judgment against Utah for such amounts, Utah shall pay interest on such amounts from the date payment of such amounts was due to the date of actual payment at a rate per annum equal to the Prime Rate in effect from time to time for the relevant period, together with the costs and expenses of Pluto advisors, lenders, counsel and accountants, (including reasonable legal fees iii) lobbying fees, costs and expenses, (iv) in connection with such suit. due diligence, investigation and inspection fees, costs and expenses, (ev) The Parties acknowledge all costs and agree that in no event shall Utah be required expenses to pay more than one Termination Payment, even if a Termination Payment may be payable under more than one provision enforce the provisions of this Agreement at Section 14.03 and any and all rights and remedies of Purchaser or any of its Affiliates under this Agreement; and (vi) the same time or at different times and upon the occurrence of different eventsDeposit.

Expenses; Termination Payment. (a) Except as otherwise provided in the Separation and Distribution Agreement or this Agreement, including this Section 10.39.3, and except for (i) the expenses in connection with printing and mailing the securities filings Miami Registration Statement, the Prospectus, the Circular, the Seattle Registration Statement and the disclosure documents required in connection with the transactions contemplated in this Agreement, including the actions specified in Section 8.57.4, (ii) all SEC filing fees relating to the transactions contemplated by this Agreement and (iii) the fees in connection with the approvals required under Section 8.7(a7.6(a) related to the Combination Merger (each of which fees and expenses in clauses (i) through (iii) shall be borne, in each case, (A) equally by Utah Miami and Pluto in the event that this Agreement is terminated in accordance with its terms or (B) by Spinco in the event that the Closing occursHouston), all fees and expenses incurred by the Parties shall be borne solely by the Party that has incurred such fees and expenses; provided, that, without duplication of any other obligation under this Agreement, in the event this Agreement is terminated pursuant to Section 9.1, Miami shall pay to Houston an amount equal to the Pre-Funded Interest Amount (if any). (b) Utah Miami shall pay to Pluto, by way of compensation, Houston $322 million 59,825,000 (the “Termination Payment”), by wire transfer of immediately available funds (in U.S. dollars) to an account or accounts specified by PlutoHouston, if this Agreement is terminated as follows: (i) if this Agreement is terminated pursuant to Section 10.1(g9.1(f), Section 9.1(g) or Section 9.1(h), then Utah Miami shall pay, or cause to be paid, the entire Termination Payment on the third (3rd) second Business Day following such termination; or and 108 Table of Contents (ii) (x) if this Agreement is terminated (A) pursuant to Section 10.1(e9.1(e); or (B) as pursuant to Section 9.1(c) without a result vote of the shareholders of Miami contemplated by this Agreement at the Miami Shareholders Meeting having occurred, and (x) in any such case a Willful Breach Competing Proposal shall have been publicly announced or otherwise communicated to the Miami Board at any time after the date of Section 8.11, this Agreement and not publicly withdrawn at least five (5) Business Days prior to the date of termination and (y) if within twelve (12) months after the date of such termination, a transaction in respect of a Competing Proposal is consummated or Utah Miami enters into a definitive written agreement in respect of a Competing ProposalProposal (which, in each case, need not be the same Competing Proposal that was made, disclosed or communicated prior to the termination hereof), then Utah Miami shall be obligated to pay the Termination Payment on the third (3rd) second Business Day following the earlier of the date Utah Miami enters into a definitive agreement in respect of or consummates such Competing Proposal; provided provided, that, solely for purposes of this Section 10.3(b)(ii9.3(b)(ii), the term “Competing Proposal” shall have the meaning set forth in Section 8.11(f)(i7.10(f)(i), except that all references to 15% shall be changed to 50%. (iii) (x) if this Agreement is terminated pursuant to Section 10.1(f) or Section 10.1(e) as a result of a breach of Section 8.6, (y) prior to such termination, a Competing Proposal shall have been publicly announced or otherwise becomes publicly known (or, in the case of a Willful Breach of Section 8.6, a Competing Proposal shall have been communicated to the Board of Directors of Utah), and, other than in the case of a termination pursuant to Section 10.1(e) as a result of a Willful Breach of Section 8.6, such Competing Proposal that has been publicly announced or otherwise becomes publicly known shall not have been publicly withdrawn at least seven (7) days prior to the Utah Shareholders Meeting, and (z) within twelve (12) months after the date of such termination, a Competing Proposal is consummated or Utah enters into a definitive written agreement in respect of a Competing Proposal (which need not be the same Competing Proposal referred to in clause (y)), then Utah shall be obligated to pay the Termination Payment on the third (3rd) Business Day following the earlier of the date Utah enters into a definitive agreement in respect of or consummates such Competing Proposal; provided that, solely for purposes of this Section 10.3(b)(ii), the term “Competing Proposal” shall have the meaning set forth in Section 8.11(f)(i), except that all references to 1520% shall be changed to 50%. (c) In the event this Agreement is terminated by either Pluto or Utah pursuant to Section 10.1(f), then Utah shall pay to Pluto (by wire transfer of immediately available funds promptly following delivery by Pluto to Utah of a written statement setting forth the amount of the Pluto Expenses, including specifying the portion of Pluto Expenses paid to each vendor on a vendor-by-vendor basis), all reasonable out-of-pocket costs, fees and expenses incurred by Pluto in connection with this Agreement and the transactions contemplated by this Agreement but excluding all such costs, fees and expenses incurred by Pluto prior to May 2, 2019 (the “Pluto Expenses”); provided that Utah shall not be obligated to pay the Pluto Expenses in excess of $96 million; provided, further, that any payment of the Pluto Expenses shall not affect Pluto’s right to receive any Termination Payment otherwise due under Section 10.3(b), but shall reduce, on a dollar-for-dollar basis, any Termination Payment that becomes due and payable under Section 10.3(b). (d) In the event of the valid termination of this Agreement in accordance with this Article X under circumstances in which the Termination Payment is payable pursuant to this Section 10.39.3, it is agreed that the Termination Payment is liquidated damages and by way of compensationdamages, and not a penalty. Except with respect to claims resulting from fraud by the Utah Parties, payment of any Termination Payment shall constitute the sole and exclusive remedy of Pluto and the Spinco Parties against the Utah Parties, their respective Subsidiaries and Affiliates, the Spinco Lenders, the Lender Related Parties and each of their respective Representatives, in circumstances where the Termination Payment is payable under this Agreement and the Termination Payment is paid; provided, however, that, in circumstances where the Termination Payment is payable under this Agreement and Utah has committed a Willful Breach of this Agreement, Pluto and the Spinco Parties may elect, no later than the date the Termination Payment is due, to forgo the Termination Payment and instead pursue a claim for damages under this Agreement. Each Party agrees that the agreements contained in this Section 10.3 9.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if Utah Miami fails to pay any amounts due under this Section 10.3 9.3 and, in order to obtain such payment, Pluto Houston commences a suit that results in a judgment against Utah Miami for such amounts, Utah Miami shall pay interest on such amounts from the date payment of such amounts was due to the date of actual payment at a the rate per annum equal to the Prime Rate prime rate published in effect from time to time the Wall Street Journal for the relevant period, together with the costs and expenses of Pluto Houston (including reasonable legal fees and expenses) in connection with such suit. In the event that the Termination Payment is payable and actually paid to and not irrevocably rejected by Houston in accordance with this Section 9.3, payment of such Termination Payment shall be the sole and exclusive remedy of Houston and its Affiliates against Miami or Miami, its Subsidiaries, their respective Affiliates and the former, current and future shareholders, directors, officers, employees, Affiliates and other Representatives of each such Person, any Lender and Lender Related Party for any loss or damage based upon, arising out of or relating to this Agreement or the negotiation, execution or performance hereof or the transactions contemplated hereby; provided, however, that payment by Miami of the Termination Payment shall not (i) limit the right of Houston and its Subsidiaries and Representatives to be reimbursed for expenses and indemnified in accordance with Section 7.7(f) or recover interest in accordance with the third sentence of this Section 9.3(c), or (ii) relieve Miami from any liability or damage resulting from a Willful Breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, or Fraud. Notwithstanding anything to the contrary, nothing in this Agreement, including this Section 9.3, shall in any way limit the provisions of Section 10.9. (ed) The Parties acknowledge and agree that in no event shall Utah Miami be required to pay more than one Termination Payment. 109 Table of Contents (e) No later than five Business Days following the Closing Date, even (i) Houston shall deliver to Seattle a written statement setting forth the amount of the Pre-Funded Interest Amount (if any); and (ii) Seattle shall deliver to Houston a Termination Payment may written statement setting forth the amount of the Financing Expense Reimbursement (if any). No later than 10 Business Days following the Closing Date, a payment shall be payable under more than one provision made as follows in immediately available funds in United States dollars by wire transfer to a bank account designated in writing by the Party entitled to receive the payment: (i) If the Financing Adjustment Amount is a positive number, then Seattle shall pay the amount of the Financing Adjustment Amount to Houston; and (ii) If the Financing Adjustment Amount is a negative number, then Houston shall pay the absolute value of the Financing Adjustment Amount to Seattle. Any payment pursuant to this Agreement at Section 9.3(e) shall be treated for Tax purposes as an adjustment to the same time or at different times and upon amount of the occurrence Seattle Payment. (f) For purposes of different events.Section 9.3(e):