Liabilities and Remedies; Break-Up Fee. (a) In the event that this Agreement is terminated by a party (the "Aggrieved Party") solely by reason of the material breach by the other party ("Breaching Party") of any of its representations, warranties, covenants or agreements contained herein then the Aggrieved Party shall be entitled to such remedies and relief against the Breaching Party as are available at law or in equity. Moreover, the Aggrieved Party without terminating this Agreement shall be entitled to specifically enforce the terms hereof against the Breaching Party in order to cause the Merger to be consummated. Each party acknowledges that there is not an adequate remedy at law to compensate the other parties relating to the non-consummation of the Merger. To this end, each party, to the extent permitted by law, irrevocably waives any defense it might have based on the adequacy of a remedy at law which might be asserted as a bar to specific performance, injunctive relief or other equitable relief.
Liabilities and Remedies; Break-Up Fee. (a) In the event of termination of this Agreement as provided in Sections 7.1(a) through 7.1(c), or Sections 7.1(e) through 7.1(i), this Agreement shall forthwith become void and there shall be no liability or obligation on the part of Bay View or FMAC or their respective officers or directors except for the obligations set forth in Section 5.1(b), Section 5.4 and Section 7.2, which obligations shall survive. Termination under Section 7.1(e) or (f) shall also release the parties from any liability or obligations under Sections 7.2(b) through 7.2(d). In the event of termination of this Agreement as provided in Section 7.1(d), Section 5.1(b), Section 5.4 and Section 7.2 shall survive, and the non-breaching party shall be entitled to such remedies and relief against the breaching party as are available at law or in equity; provided, however, no remedy at law or for damages shall be available to the non-breaching party on account of a breach of representation or warranty by the breaching party unless such breach was willful. Moreover, the non-breaching party without terminating this Agreement shall be entitled to specifically enforce the terms hereof against the breaching party in order to cause the Merger to be consummated. Each party acknowledges that there is not an adequate remedy at law to compensate the other parties relating to the non-consummation of the Merger. To this end, each party, to the extent permitted by law, irrevocably waives any defense it might have based on the adequacy of a remedy at law which might be asserted as a bar to specific performance, injunctive relief or other equitable relief. (b) Bay View shall be entitled to a break-up fee of $8,000,000 in cash payable on demand in immediately available funds, as its sole and exclusive remedy, if: (i) either this Agreement is terminated by FMAC under Section 7.1(h) or by Bay View under Section 7.1(i); or (ii) this Agreement is terminated for any reason other than a proper termination by FMAC under Section 7.1(d), and in the case of this subpart (ii) one of the following events has occurred or occurs: (i) the FMAC Stockholders' Meeting does not take place by December 31, 1999; (ii) the Board of Directors of FMAC fails to recommend approval of this Agreement and the Merger to the stockholders of FMAC, or such Board of Directors shall adversely alter or modify its 43
