NO EFFECT, AND, EXCEPT AS PROVIDED IN SECTION 7.2(C), EACH
PARTY SHALL PAY ALL OF ITS OWN EXPENSES INCURRED IN CONNECTION HEREWITH, WITHOUT
ANY LIABILITY ON THE PART OF ANY PARTY OR ITS DIRECTORS, OFFICERS OR
SHAREHOLDERS; PROVIDED, HOWEVER, THAT IF THIS AGREEMENT IS TERMINATED AND
ABANDONED BECAUSE EITHER PARTY HAS DEFAULTED UNDER OR BREACHED THIS AGREEMENT,
OTHER THAN DUE TO A NON-WILLFUL BREACH OF ANY REPRESENTATION OR WARRANTY BY THE
COMPANY OR BUYER, AS APPLICABLE, THEN THE PARTY SO ELECTING TO TERMINATE THIS
AGREEMENT SHALL BE ENTITLED TO PURSUE, EXERCISE AND ENFORCE ANY AND ALL OTHER
REMEDIES, RIGHTS, POWERS AND PRIVILEGES AVAILABLE TO IT AT LAW OR IN EQUITY
AGAINST THE OTHER PARTY WITH RESPECT TO SUCH BREACH OR DEFAULT.
(B)
IF THE COMPANY TERMINATES THIS AGREEMENT PURSUANT TO SECTION
7.1(A)(VIII), THEN THE COMPANY SHALL PAY TO BUYER, IN CASH, A TERMINATION FEE
EQUAL TO 3% OF THE REFERENCE AMOUNT (THE "TERMINATION FEE").
THE COMPANY SHALL
SATISFY ITS OBLIGATION UNDER THE PRECEDING SENTENCE BY THE WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT THAT BUYER DESIGNATES NOT LATER THAN
THE DATE OF SUCH TERMINATION.
(C)
THE COMPANY ACKNOWLEDGES THAT THE AGREEMENTS CONTAINED IN SECTION
7.2(B) ARE AN INTEGRAL PART OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THAT,
WITHOUT THESE AGREEMENTS, BUYER WOULD NOT ENTER INTO THIS AGREEMENT.
ACCORDINGLY, IF THE COMPANY FAILS TO PAY THE AMOUNT PAYABLE UNDER SECTION
7.2(B), THEN THE COMPANY SHALL PAY TO BUYER ALL COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES AND EXPENSES) INCURRED BY BUYER AND ITS AFFILIATES IN
CONNECTION WITH THE COLLECTION OF SUCH OVERDUE AMOUNTS AND THE ENFORCEMENT BY
BUYER OF ITS RIGHTS UNDER SECTION 7.2(B), TOGETHER WITH INTEREST ON SUCH OVERDUE
AMOUNTS AT A RATE PER ANNUM EQUAL TO THE "PRIME RATE" (AS ANNOUNCED BY JPMORGAN
CHASE & CO. OR ANY SUCCESSOR THERETO) IN EFFECT ON THE DATE ON WHICH SUCH
PAYMENT WAS REQUIRED TO BE MADE.
ARTICLE VIII
MISCELLANEOUS
8.1
EXPENSES.
EXCEPT AS PROVIDED IN SECTION 7.2(C), EACH OF THE
PARTIES HERETO SHALL PAY ITS OWN FEES AND EXPENSES (INCLUDING THE FEES OF ANY
ATTORNEYS, ACCOUNTANTS, INVESTMENT BANKERS OR OTHERS ENGAGED BY SUCH PARTY) IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY WHETHER OR NOT THE TRANSACTIONS
CONTEMPLATED HEREBY ARE CONSUMMATED, IT BEING UNDERSTOOD AND AGREED THAT ALL
SUCH FEES AND EXPENSES OF THE COMPANY SHALL FIRST BE PAID BY THE COMPANY OUT OF
ITS CASH (WITHOUT GIVING EFFECT TO ANY PROCEEDS RECEIVED IN CONNECTION WITH A
FORWARD CONTRACT), THEN OUT OF ANY AMOUNT TO BE PAID BY BUYER TO THE COMPANY
BANKRUPTCY ESTATE PURSUANT TO SECTION 1.1(D) AND FINALLY OUT OF THE COMPANY
BANKRUPTCY ESTATE.
BUYER WILL PAY ALL REQUIRED FILING FEES UNDER THE HSR ACT IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
35
8.2
SURVIVAL.
NONE OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
THIS AGREEMENT OR IN ANY DOCUMENT DELIVERED PURSUANT HERETO SHALL SURVIVE THE
CONSUMMATION OF THE CLOSING.
IT IS UNDERSTOOD AND AGREED THAT THE