Common use of Termination Fee Clause in Contracts

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (ai) If In the event that this Agreement is validly terminated by Seller or Purchaser the Company pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d7.1(h)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller the Company shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth pay, within three (3) Business Day following of the notice of such termination either (x) to require Purchaser to pay Seller, promptly following such electionof this Agreement, a termination fee of to BRPA in an amount equal to Ten Million Dollars ($2,300,000 10,000,000) (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of in immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole funds as liquidated damages and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered not as a result of penalty. (ii) The Parties acknowledge and hereby agree that the termination of this Agreement Termination Fee, if, as and when required pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii7.2(b). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are shall not constitute a penalty but rather constitute will be liquidated damages damages, in a reasonable amount that will compensate Purchaser or Seller, as applicable, BRPA in the circumstances in which such termination fee it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. The Parties acknowledge and hereby agree that in no event shall the Company be required to pay the Termination Fee on more than one (1) occasion. Each of the Company, BRPA and Merger Sub acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated hereby, by this Agreement and that, without these agreements, neither Purchaser nor Seller the parties hereto would not enter into this Agreement. Accordingly. (iii) Notwithstanding anything to the contrary in this Agreement, if Purchaser or Seller, as in any circumstance in which this Agreement is terminated and BRPA is paid the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with pursuant to this Section 9.037.2(b), andthe Termination Fee shall be the sole and exclusive monetary remedy of BRPA, Merger Sub or any of the BRPA Related Parties against the Company or any other Company Related Party for any loss or damage suffered as a result of the failure of the Merger and the other transactions contemplated by this Agreement to be consummated or for a breach of, or failure to perform under, this Agreement or any certificate or other document delivered in connection herewith or otherwise or in respect of any oral representation made or alleged to have been made in connection herewith or therewith, and upon payment of such amounts, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or in respect of representations made or alleged to be made in connection herewith, whether in equity or at law, in order to obtain such paymentcontract, Purchaser in tort or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitotherwise.

Termination Fee. 3.1 If the Merger is not consummated and the Parent Termination Fee becomes payable by Parent pursuant to Section 8.06(b) of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, Defaulting Party shall be capable responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of being satisfied, then Seller the Merger Agreement and shall irrevocably elect no later than 5:00 p.m. Eastern Time on promptly pay an amount equal to the fifth Business Day following such termination either (x) Parent Termination Fee to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), Parent by wire transfer of immediately available funds same day fund within one (1) Business Day following the termination of the Merger Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) in the event any of the Company’s fees and expenses shall become payable by Parent in accordance with Section 8.06(d) of the Merger Agreement, the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; and (c) in the event that a Non-Defaulting Party’s (or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due and payable, the Defaulting Party shall indemnify such Non-Defaulting Party (or the respective Guarantor) in full for all payments made by, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive obligations of the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser Defaulting Party under the terms of this Agreement (Section 3.1, collectively, the “Purchaser Damages ElectionDefault Obligations”). Notwithstanding anything If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion of the Default Obligations. A Defaulting Party’s “Pro Rata Portion” for the purposes of this Section 3.1 is a fraction, the numerator of which is such Defaulting Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting Parties. 3.2 If the Merger is not consummated and the Parent Termination Fee becomes payable by Parent pursuant to Section 8.06(b) of the Merger Agreement, but no party is a Defaulting Party, then each party who (or whose Affiliate) also executes a Limited Guarantee shall be responsible for its (or its Affiliate’s) Guaranteed Percentage (as defined in the respective Limited Guarantee) of (i) Parent Termination Fees under Section 8.06(b) and (ii) Company’s fees and expenses under Section 8.06(d) of the Merger Agreement ((i) and (ii) collectively, the “Guaranteed Obligations”) in accordance with and subject to the contrary in terms and conditions of the Limited Guarantee executed by such party. 3.3 A “Defaulting Party” is a party hereto, the failure of whom or whose Affiliate to perform its obligation under this AgreementAgreement or, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentenceextent it is a party, such Purchaser Termination Fee shall be the sole and exclusive remedySupport Agreement or the Equity Commitment Letter, including on account of punitive damages, results in the failure of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as Merger to consummate. A “Non-Defaulting Party” is a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller party hereto who is not a Defaulting Party. 3.4 The parties shall be entitled to pursue monetary damages for only those Losses incurred receive any termination, break-up or suffered by Seller that were the result of fraud other fees or material breach amounts payable to Parent by the Purchaser Company pursuant to the Merger Agreement, to be allocated ratably in proportion to their respective Contemplated Ownership Percentages, net of its representations the costs and warranties or covenants under this Agreement expenses incurred by the Consortium in connection with the Transaction, including the fees, expenses and disbursements of Consortium Advisors retained by the Consortium (but other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election fees and costs of any Separate Advisors who were retained by a party in accordance with this Section 9.03(a4.5 unless otherwise agreed to by the parties in writing). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If Notwithstanding Section 10.2, (i) if this Agreement is terminated by Seller or Purchaser Buyer pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d10.1(a)(iv)(A)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller Parent shall irrevocably elect no later than 5:00 p.m. Eastern Time on pay to Buyer, within five Business Days after the fifth Business Day following date of such termination either (x) to require Purchaser to pay Sellertermination, promptly following such electionas liquidated damages and not as penalty, a termination fee of equal to $2,300,000 10,000,000 (the “Purchaser Termination Fee”) by Wire Transfer and (ii) if this Agreement is terminated by Sellers pursuant to Section 10.1(a)(iv)(B), by wire transfer of immediately available funds (then Buyer shall pay, as liquidated damages and not as penalty, the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms Seller Representative on behalf of this Agreement (all Sellers by Wire Transfer within five Business Days after the “Purchaser Damages Election”date of such termination. The payment of the Termination Fee by Buyer will be the exclusive remedy of Sellers for Losses arising as a result of any actions taken as set forth on Schedule 6.1(B). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant Subject to the preceding sentence, such Purchaser the payment by any party of the Termination Fee shall not be the sole and an exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents remedy for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach purposes of this Agreement (regardless and shall in no way limit any rights of the time party receiving the Termination Fee from bringing any Claim with respect to any matter described in Section 10.2(i) or Section 10.2(ii) and receiving an award of breach). If Seller makes any remedy with respect thereto; provided, however, that the Purchaser Damages Election, then Seller amount of any damages award received by such party shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach reduced by the Purchaser amount received by such party in respect of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this (excluding any amount received pursuant to Section 9.03(a10.3(b)). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the The parties acknowledges hereto acknowledge that the agreements contained in this Section 9.03 10.3 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller the other parties would enter not have entered into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, either party fails to timely pay the Seller Termination Fee or Purchaser when due under this Section 10.3 and the other party successfully obtains a judgment against such party for the amount of such Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order such non-breaching party will also be entitled to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and expensesdisbursements of counsel, financial advisers, actuaries and accountants) incurred by such party in connection with such suit, together with interest on the amount of such judgment from the date the Termination Fee was first required to be paid under this Section 10.3 to the date of actual payment at a rate per annum equal to rate applicable to the prime rate published in The Wall Street Journal on the date the Termination Fee was first required to be paid under this Section 10.3 plus 4%, compounded quarterly.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary set forth in Section 8.02, in the event that this AgreementAgreement is terminated (i) by Obalon pursuant to Section 8.01(b)(i) for breach of Section 6.09 or (ii) by Obalon or ReShape pursuant to Section 8.01(d)(v), if Seller makes then Obalon shall be entitled to a fee of $1,000,000 and Obalon and ReShape shall promptly submit joint written instructions to the Purchaser Fee Electionapplicable escrow agent instructing it to distribute the amounts held in Escrow (the “Termination Fee”) to Obalon in accordance with the terms hereof. (b) Except as provided in Section 8.02, and Purchaser pays in the Purchaser event that Obalon receives full payment of the Termination Fee pursuant to Section 8.03(a) under circumstances where a Termination Fee was payable, the preceding sentence, such Purchaser receipt of the Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents monetary remedy for any and all Losses losses or damages suffered as a result or incurred by Obalon, Merger Sub, any of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no their respective Affiliates or any other liability for any breach of Person in connection with this Agreement (regardless and the termination hereof), the Merger and the other transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination; provided that no such payment shall relieve any party of the time any liability or damages to any other party resulting from any intentional breach of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under any provision contained in this Agreement (other than Section 5.14, which shall be subject to claims or for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available fundsfraud. Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges acknowledge and agree that the agreements contained nothing in this Section 9.03 are an integral part 8.03 shall be deemed to affect their respective rights to specific performance hereunder in order to specifically enforce this Agreement. The parties acknowledge and agree that any payment of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are Termination Fee is not a penalty but rather constitute is liquidated damages in a reasonable amount that will is intended to compensate Purchaser Obalon or Seller, as applicable, Merger Sub in the circumstances in which such termination fee is fees are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby; provided, and thathowever, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as that in the case may beof intentional breach or fraud by ReShape, Obalon or Merger Sub shall be permitted to seek damages in excess of the Termination Fee. If ReShape fails to instruct the applicable escrow agent for timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when payment of any amount due in accordance with this pursuant to Section 9.03, 8.03(a) and, in order to obtain such payment, Purchaser or Seller, as the case may be, Obalon commences a suit that results in a judgment against the other party ReShape for the amounts amount set forth in this Section 9.038.03(a), Obalon shall be entitled to interest on such paying party shall pay amount at the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) prime rate of ▇.▇. ▇▇▇▇▇▇, N.A. in connection with effect on the date such suitpayment was required to be made.

Termination Fee. (a) If In the event that this Agreement is terminated by Seller or Purchaser Buyer pursuant to Section 9.01(b9.1(b) (legal restraint) or Section 9.1(c) (upon reaching Outside Date) owing to the Required Regulatory Approvals not having been obtained, and at such time all other conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall to Closing have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be or are reasonably capable of being satisfied, then and provided that Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (xhas, or has caused, its obligations in Sections 6.6(b) and 6.6(f) to require Purchaser to pay Sellerbe satisfied in all material respects, and at the time of termination any waiting periods under any Required Regulatory Approvals have not expired or otherwise terminated, in each case, then Buyer shall, promptly following and in any event within two (2) Business Days of such electiontermination, pay Seller a non-refundable termination fee fee, without offset or reduction of $2,300,000 any kind, in an amount of One Hundred and Twenty-five Million Dollars (C$125,000,000) (the “Purchaser Buyer Termination Fee”), it being understood that in no event shall Buyer be required to pay the Buyer Termination Fee on more than one occasion. Any amount that becomes payable pursuant to this Section 9.3(a) shall be paid by wire transfer of immediately available funds to an account or accounts that have been designated by Seller. Until such time as this Agreement is terminated in any of the circumstances described in this Section 9.3(a) and the Buyer Termination Fee is paid by or on behalf of Buyer in accordance therewith, nothing in this Section 9.3 shall prohibit Seller from seeking specific performance pursuant to, and on the terms and conditions set forth in, Section 12.7; provided that Seller shall not be entitled under any circumstances to obtain both a recovery of monetary damages in the form of the Buyer Termination Fee (and any Interest Amount or Collection Costs recoverable by Seller pursuant to this Section 9.3(a)), and specific performance of the consummation of the Closing pursuant to this Agreement. (b) In the event that the Buyer Termination Fee is paid to Seller pursuant to Section 9.3(a), Buyer shall not have any liability of any nature whatsoever to Seller or any other Person with respect to any breach of this Agreement or the failure of the Closing to occur, other than the liability of the Buyer to pay the Buyer Termination Fee in accordance with Section 9.3(a), as applicable or any amounts payable under this Section 9.3(b); provided, however, that, if Buyer fails to pay the Buyer Termination Fee when due (x) if, in order to obtain such payment, Seller commence a Proceeding that results in a judgment against ▇▇▇▇▇, Buyer shall reimburse Seller for its reasonable and documented, out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding (such amount, the “Purchaser Fee ElectionCollection Costs”) or and (y) to irrevocably waive Seller’s right to receive interest shall accrue on the Purchaser Buyer Termination Fee and elect from the date of termination of this Agreement at a rate per annum equal to pursue monetary damages available to Purchaser under the terms prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date of termination of this Agreement (such amount, the “Purchaser Damages ElectionInterest Amount”). Notwithstanding anything to In the contrary in this Agreement, if Seller makes event that the Purchaser Fee Election, and Purchaser pays the Purchaser Buyer Termination Fee is paid to Seller pursuant to Section 9.3(a), Seller acknowledges and agrees that, other than with respect to amounts payable pursuant to this Section 9.3(b) (including the preceding sentenceCollection Costs and Interest Amount), such Purchaser payment by Buyer of the Buyer Termination Fee (and any Interest Amount or Collection Costs) shall be the sole and exclusive remedy, including on account whether in any individual, corporate or any other capacity, with respect to any and all claims relating (directly or indirectly) to the subject matter of punitive damagesthis Agreement or the transactions contemplated hereby, regardless of the legal theory under which such material Liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses material Liabilities suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach (whether willful, intentional, unintentional or otherwise) of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Electionany representation, then Seller shall be entitled to pursue monetary damages for only those Losses incurred warranty, covenant or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary agreement in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant or related to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination subject matter of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, against Buyer or any of its Affiliates or the failure (whether willful, intentional, unintentional or otherwise) of the transactions contemplated hereby to be consummated and that, without these agreements, neither Purchaser nor none of Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails its Affiliates shall bring or permit any of their respective Affiliates to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) bring any Proceeding in connection with any such suitfailure of the transactions contemplated hereby to be consummated.

Termination Fee. (a) If In the event that this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered Buyer as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material a breach by the Purchaser other party of its representations and warranties representations, warranties, covenants or covenants agreements under this Agreement (other than Section 5.14, which shall be as subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). subparagraph (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(iibelow), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or SellerBuyer, as the case may be, fails shall be entitled to timely pay be paid by the breaching party a termination fee in the amount of $50,000,000. The termination fee shall constitute liquidated damages and shall be in full satisfaction of all rights of a non-breaching party; provided, however, that, in the event that (i) the termination is a result of a breach by Buyer of its obligations to use its reasonable best efforts to consummate the transactions contemplated hereby, Seller Termination Fee also shall be entitled to bring a claim against Buyer for money damages; (ii) Buyer has raised at least $800 million in cash or Purchaser Termination FeeFinancing, or a combination thereof, for purposes of funding the Purchase Price, Seller also shall have the right to seek specific performance of Buyer's obligations hereunder or (iii) the termination is a result of a breach by Seller of any of its obligations under this Agreement, Buyer also shall have the right to seek specific performance of Seller's obligations hereunder. (b) Schedule VIII hereto identifies which of the Required Consents (i) are required to be obtained by Buyer ("Buyer Consents"), (ii) are required to be obtained by Seller ("Seller Consents") and (iii) are required to be obtained by Seller and Buyer jointly. In the event that this Agreement is terminated by Seller as a result of the failure by Buyer to obtain any Buyer Consent, or by Buyer, as applicablea result of the failure by Seller to obtain any Seller Consent, when due the terminating party shall be entitled to be paid by the party that failed to obtain the Consent a termination fee in accordance with this Section 9.03the amount of $50,000,000; provided, andhowever, that (i) in order the event that the failure to obtain a Required Consent is a result of a breach by Buyer or Seller of its obligation to use its best efforts to obtain such paymentRequired Consent, Purchaser or Seller, as then the case may be, commences terminating party also shall be entitled to bring a suit that results in a judgment claim for money damages against the other party breaching party, and if available, to seek specific performance of the breaching party's obligations hereunder; provided, further, however, that Seller shall be entitled to seek specific performance of Buyer's obligations hereunder only if Buyer has raised at least $800 million in cash or Financing, or a combination thereof, for purposes of funding the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitPurchase Price.

Termination Fee. To compensate Trustmark for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities by Trustmark, Cadence and Trustmark agree as follows: (a) If Provided that Trustmark shall not be in material breach of any covenant or obligation under this Agreement (which breach has not been cured promptly following receipt of written notice thereof by Cadence specifying in reasonable detail the basis of such alleged breach), Cadence shall pay to Trustmark the sum of $2,000,000 (the “Termination Fee”) if this Agreement is terminated (i) by Seller Cadence under the provisions of Section 8.1(e), (ii) by either Trustmark or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied Cadence if at the Closing, shall be capable time of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on any failure by the fifth Business Day following such termination either (x) shareholders of Cadence to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee approve and elect to pursue monetary damages available to Purchaser under the terms of adopt this Agreement (and the “Purchaser Damages Election”). Notwithstanding anything Merger and there shall exist a Superior Proposal with respect to Cadence and, within twelve months of the contrary in termination of this Agreement, if Seller makes Cadence enters into a definitive agreement with any third party with respect to any such Superior Proposal, or (iii) by Trustmark under the Purchaser Fee Election, and Purchaser pays provisions of Section 8.1(f). The payment of the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the Trustmark’s sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach remedy with respect to termination of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election as set forth in accordance with this Section 9.03(a8.3(a). (b) If Any payment required by paragraph (a) of this Agreement Section 8.3 shall become payable within two (2) business days after receipt by the non-terminating party of written notice of termination of this Agreement; provided, however, that if such Termination Fee payment is terminated required pursuant to clause (ii) of Section 9.01(c)(ii) or Section 9.01(d)(ii8.3(a), then Seller such payment shall pay Purchaser $2,300,000 become payable within two (2) business days after the “Seller Termination Fee”) not later than the day execution and delivery by Cadence of such termination, by wire transfer of immediately available funds. Notwithstanding anything definitive agreement relating to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)Superior Proposal. (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If In the event that this Agreement is terminated by Seller or Purchaser Verizon pursuant to Section 9.01(b) 12.1(f), Acquiror shall pay to Verizon, on behalf of the Verizon Parties, the Verizon Lessors and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such electionSale Site Subsidiaries, a termination fee of in an amount equal to $2,300,000 353,920,000.00 (the “Purchaser Termination Fee”), it being understood that in no event shall Acquiror be required to pay the Termination Fee on more than one occasion. Any amount due under this Section 12.3(a) shall be paid by wire transfer of immediately available same-day funds to an account provided in writing by Verizon to Acquiror within two (2) Business Days of the “Purchaser Fee Election”date of such termination. (b) or (y) to irrevocably waive Seller’s right to receive In the Purchaser Termination Fee event Verizon, on behalf of the Verizon Parties, the Verizon Lessors and elect to pursue monetary damages available to Purchaser under the terms Sale Site Subsidiaries, receives full payment of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to Section 12.3(a), the preceding sentencereceipt by Verizon of the Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Verizon Parties, the Verizon Lessors and the Sale Site Subsidiaries in connection with this Agreement, the Collateral Agreements, the Debt Financing Commitment, the transactions contemplated hereof and thereof, the termination hereof and thereof, and any matter forming the basis for such Purchaser termination, and none of the Verizon Parties, the Verizon Lessors and the Sale Site Subsidiaries or their Affiliates shall be entitled to bring or maintain any Claim, action or proceeding against Acquiror or the Tower Operator or their Affiliates or any Debt Financing Source arising out of or in connection with this Agreement, the Collateral Agreements, the Debt Financing Commitment, the transactions contemplated hereof and thereof, or the termination hereof and thereof. (c) The Parties agree that prior to the Initial Closing, the payment of the Termination Fee shall be the sole and exclusive remedyremedy available to the Verizon Parties, including on account of punitive damages, of the Seller Verizon Lessors and its the Sale Site Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses Claims suffered as a result of such terminationthe failure of the transactions contemplated by this Agreement to be consummated or for any breach or failure to perform hereunder, which fee shall become due and payable only in the event this Agreement is terminated pursuant to Section 12.1(f), and upon payment of the Termination Fee, none of Acquiror, the Tower Operator and any of their Affiliates or Representatives shall have any further liability or obligation to any other Party or its Affiliates relating to or arising out of this Agreement or in respect of any Collateral Agreement or theory of Law or equity, whether in equity or at Law, in contract, in tort or otherwise. For the avoidance of doubt, if Seller makes while Verizon may pursue both a grant of specific performance and the Purchaser Fee Election and Purchaser pays payment of the Purchaser Termination Fee, Purchaser Acquiror shall have no other liability for any breach not be obligated to both specifically perform the terms of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges The Parties acknowledge that the agreements contained in this Section 9.03 12.3 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, hereby and that, without these agreements, neither Purchaser nor Seller the Parties would enter not have entered into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, Acquiror fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, required hereby and, in order to obtain such paymentthe payment of the Termination Fee, Purchaser Verizon commences an action or Seller, as the case may be, commences a suit that which results in a judgment against the other party Acquiror for the amounts set forth in this Section 9.03payment of the Termination Fee, such paying party Acquiror shall pay the other party Verizon its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and expensesfees) in connection with such action or suit, together with interest thereon at the prime rate (as published in the Wall Street Journal) in effect on the date payment of the Termination Fee was required to be made through the date such payment was actually received by Verizon.

Termination Fee. (a) If under the following circumstances: (i) Seller terminates this Agreement is terminated pursuant to Section 9.1(f) of this Agreement and within 12 months of such termination (A) an Acquisition Proposal or Acquisition Transaction has been announced with respect to any Seller Entity or (B) an Acquisition Agreement with respect to an Acquisition Transaction has been entered into with respect to Seller or any Seller Entity; or (ii) Buyer shall terminate this Agreement pursuant to 9.1(e)(i)-(iv); then Seller shall promptly pay to Buyer an amount equal to $350,000 (the "Termination Fee") upon the earlier of such announcement or the entry into such Acquisition Agreement or the date of any announcement or statement with respect to any Acquisition Proposal by Seller or Purchaser its board of directors, other than a recommendation for approval of the Mergers; provided, however, that in connection with a termination pursuant to Section 9.01(b9.1(e)(i) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied oronly, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of paid at the time of breach)termination. Seller hereby waives any right to set-off or counterclaim against such amount. If Seller makes the Purchaser Damages Election, then Seller Termination Fee shall be entitled payable pursuant to pursue monetary damages for only those Losses incurred subsection (a)(i) of this Section 9.3, the Termination Fee shall be paid in same-day funds at or suffered prior to the earliest of the date of consummation of such Acquisition Transaction, or the date of execution of an Acquisition Agreement with respect to such Acquisition Transaction or the date of any announcement or statement with respect to any Acquisition Proposal by Seller that were the result or its board of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (directors, other than Section 5.14, which a recommendation for approval of the Mergers. If the Termination Fee shall be subject payable pursuant to claims for breach without regard to materialitysubsection (a)(ii) prior to termination. In no event shall Purchaser be required to pay of this Section 9.3, the Purchaser Termination Fee if shall be paid in same-day funds upon the earlier of (i) the execution of an Acquisition Agreement with respect to such Acquisition Transaction or the date of any announcement or statement with respect to any Acquisition Proposal by Seller has not delivered or its board of directors, other than a recommendation for approval of the Purchaser Fee Election in accordance with Mergers or (ii) two business days from the date of termination of this Section 9.03(a)Agreement. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges The Parties acknowledge that the agreements contained in this Section 9.03 Article 9 are an integral part of the transactions contemplated by this Agreement, and that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller they would not enter into this Agreement. Accordingly; accordingly, if Purchaser or Seller, as the case may be, Seller fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with promptly any fee payable by it pursuant to this Section 9.039.3, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party then Seller shall pay the other party to Buyer its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses' fees) in connection with collecting such suitTermination Fee, together with interest on the amount of the fee at the prime annual rate of interest (as published in The Wall Street Journal) plus 2% as the same is in effect from time to time from the date such payment was due under this Agreement until the date of payment.

Termination Fee. (a) If Seller terminates this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b9.1(c) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(dPurchaser Change of Recommendation)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Purchaser shall pay Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), Fee in cash by wire transfer of immediately available funds to an account designated by Seller no later than three (the “Purchaser Fee Election”3) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms Business Days after notice of termination of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against either Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of Purchaser terminates this Agreement pursuant to Section 9.01(c)(ii9.1(b)(iv) or (Failure to Obtain Purchaser Stockholder Approval) and Seller is not otherwise entitled to receive the Termination Fee pursuant to this Section 9.01(d)(ii)9.3, then Purchaser shall pay Seller an amount equal to the Seller Expenses, in each case, no later than three (3) Business Days after notice of termination of this Agreement. (c) Each If (i) (A) either Purchaser or Seller terminates this Agreement pursuant to Section 9.1(b)(iv) (Failure to Obtain Purchaser Stockholder Approval) and on or before the date of the parties acknowledges Purchaser Stockholder Meeting a Purchaser Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification prior to the Purchaser Stockholder Meeting or (B) Seller terminates this Agreement pursuant to Section 9.1(b)(iii) (Terminable Breach) and following the Execution Date and on or before the date of any such termination a Purchaser Competing Proposal shall have been announced, disclosed or otherwise communicated to the Purchaser Board and not withdrawn without qualification prior to the date of such termination, and (iii) within twelve (12) months after the date of such termination, Purchaser enters into a definitive agreement with respect to a Purchaser Competing Proposal or consummates a Purchaser Competing Proposal, then Purchaser shall pay Seller the Termination Fee less the Seller Expenses if the Seller Expenses were paid by Purchaser pursuant to Section 9.3(b). For purposes of this Section 9.3(c), any reference in the definition of Purchaser Competing Proposal to “20%” shall be deemed to be a reference to “more than 50%.” (d) In no event shall Seller be entitled to receive more than one payment of the Termination Fee or more than one payment of Seller Expenses. If Seller receives the Termination Fee, then Seller will not be entitled to also receive a payment of the Seller Expenses. The Parties agree that the agreements contained in this Section 9.03 9.3 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyTransactions, and that, without these agreements, neither Purchaser nor Seller the Parties would not enter into this Agreement. Accordingly, if If Purchaser or Seller, as the case may be, fails to timely promptly pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when amount due in accordance with by it pursuant to this Section 9.039.3, andinterest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, Purchaser or Seller, as the case may be, Seller commences a suit Proceeding that results in a judgment against the other party for the amounts set forth in this Section 9.03Seller for such amount, such paying party Purchaser shall pay the other party Seller its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred in connection with such suitProceeding. (e) The Parties agree that the monetary remedies set forth in this Section 9.3 and specific performance remedies set forth in Section 11.10 shall be the sole and exclusive remedies of (i) Seller against Purchaser and any of its respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Transactions to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Purchaser shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of Purchaser or any of its former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Purchaser in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Purchaser against Seller and any of its former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Transactions to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Seller shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of Seller or any of its former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Seller in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Termination Fee. (a) If If, but only if, this Agreement is validly terminated by Seller or Purchaser the Sellers Representative pursuant to Section 9.01(b10.01(e) and at such time all conditions set forth in or Section 8.01 and Section 8.03 (other than Section 8.03(d10.01(c)) , then Purchaser shall have been satisfied orpay, for those conditions intended or cause to be satisfied at paid, to the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either Sellers (xpro rata in accordance with their Pro Rata Shares) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds to accounts designated in writing by the Sellers Representative the Termination Fee within five (5) Business Days following such termination. The parties hereto acknowledge and hereby agree that in no event shall any of Purchaser or its Affiliates be required to pay, or to cause to be paid, (A) the “Purchaser Termination Fee Election”) on more than one occasion or (yB) to irrevocably waive Seller’s right to receive both the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under any other damages, other than any interest on the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary Termination Fee; provided, nothing in this AgreementSection 10.03 shall affect or diminish the respective rights, if Seller makes the Purchaser Fee Election, obligations and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, liability of the Seller parties under Sections 6.03, 11.01, 11.10 and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)11.11. (b) If this Agreement is terminated pursuant to Section 9.01(c)(iiThe parties hereby acknowledge and agree that (i) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 10.03 are an integral part of the transactions contemplated by this Agreement, that and that, without these agreements, the amounts parties would not enter into this Agreement, and (if anyii) the Termination Fee payable by Purchaser pursuant to Section 9.03(a10.03(a) (together with any amounts payable or indemnifiable pursuant to the last sentence of this Section 9.03(b10.03(b)) are is not a penalty penalty, but rather constitute is liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable Sellers and their Affiliates for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on upon this Agreement and on the expectation of the consummation of the transactions contemplated herebyherein, and thatfor the loss suffered by reason of the failure of such consummation, without these agreementswhich amount would otherwise be uncertain and incapable of accurate determination. If Purchaser fails promptly to pay any amount due pursuant to this Section 10.03, neither it shall also pay any reasonable costs and expenses incurred by the Company in connection with enforcing this Agreement (including by legal action), together with interest on such unpaid amount, at a rate per annum, compounded monthly, equal to the Prime Rate, as reported in the print edition of The Wall Street Journal, Eastern Edition, on the date such amount was required to be paid (or, if unavailable, on the latest date prior to the payment due date on which such rate is available), calculated from the date such amount was required to be paid to (but excluding) the payment date. (c) Notwithstanding anything to the contrary in this Agreement, Sellers’ right to receive payment of the Termination Fee pursuant to this ARTICLE X shall be the sole and exclusive remedy of the Company and the Sellers against Purchaser nor Seller would enter into or any of its Affiliates or any of their respective stockholders, partners, members or representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and (ii) upon payment of the Termination Fee to the Sellers, none of Purchaser or any of its Affiliates or any of their respective stockholders, partners, members or representatives shall have any further liability or obligation relating to or arising out of Purchaser’s failure to consummate the transactions contemplated by this Agreement, whether or not the Company or the Sellers elect to terminate this Agreement. AccordinglyIn no event shall the Company or the Sellers seek any (x) equitable relief or equitable remedies of any kind whatsoever or (y) money damages or any other recovery, if Purchaser judgment, or Sellerdamages of any kind, as including consequential, indirect, or punitive damages, other than damages in an amount not in excess of the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicablein each case, when due in accordance with relating to or arising out of Purchaser’s failure to consummate the transactions contemplated by this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitAgreement.

Termination Fee. (a) If this Agreement is terminated by Seller Buyer or Purchaser the Company pursuant to Section 9.01(b9.1(a)(iv) and at or Section 9.1(a)(v), and, as of the time of such time all termination, the only conditions to Closing set forth in Section 8.01 and Section 8.03 Article VIII that have not been satisfied (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended that by their nature are to be satisfied at the Closing, shall be so long as such conditions would reasonably have been capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time satisfied if the Closing were to occur on the fifth date the notice of termination is delivered) are those set forth in Section 8.1(a) or Section 8.1(b) (but in the case of Section 8.1(b), solely with respect to a Restraint or Law in respect of an Antitrust Law), then, within five (5) Business Day Days following such termination either (x) termination, Buyer shall cause to require Purchaser be paid to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Company the Termination Fee”), . (b) Any Termination Fee due and payable by Buyer under this Section 9.3 shall be paid by wire transfer of immediately available funds (to an account designated in writing by the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such terminationCompany. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Electionas applicable, then Seller shall be entitled to pursue monetary damages for payable by Buyer only those Losses incurred once and not in duplication even though a termination fee may be payable by Buyer under one or suffered by Seller that were more provisions hereof. (c) To the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required extent Buyer fails to pay (or fails to cause to be paid) to the Purchaser Company the Termination Fee if Seller has not delivered the Purchaser Fee Election when due in accordance with this Section 9.03(a)9.3 and the Company initiates a Proceeding against Buyer to recover such Termination Fee, if such Proceeding results in a judgment in favor of the Company for the payment of the Termination Fee, Buyer shall pay to the Company: (i) all reasonable out-of-pocket costs and expenses incurred by the Company in connection with the enforcement of its rights under this Agreement (including with respect to such Proceeding) and (ii) interest on the unpaid Termination Fee from the date due under Section 9.3(a) until the date of payment at a rate of 10% per annum, accruing daily. (bd) If The parties agree that if the Termination Fee becomes payable by, and is paid by, Buyer, then such Termination Fee shall be the Company’s and Seller’s and their respective Affiliates’ sole and exclusive remedy for damages against Buyer, the Debt Financing Parties and their respective Affiliates and Applicable Representatives in connection with this Agreement is terminated pursuant to Section 9.01(c)(iiAgreement, the Debt Financing, the financing commitments (and the termination thereof) thereunder and the transactions contemplated hereby and thereby (and the abandonment or termination thereof) or Section 9.01(d)(ii)any matter forming the basis of such termination and in no event will the Company, then the Seller shall pay Purchaser $2,300,000 or any other person seek to recover any other money damages or seek any other remedy based on a claim in law or equity for any reason in connection with this Agreement, the Debt Financing, the financing commitments (and the “Seller Termination Fee”termination thereof) not later than thereunder and the day transactions contemplated hereby and thereby (and the abandonment or termination thereof) or any matter forming the basis of such termination; provided, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreementthat nothing contained herein shall relieve Buyer from liability for Fraud or for any willful and material breach; provided, Purchaser’s receipt that none of the Seller Termination Fee pursuant Debt Financing Parties shall have any further liability or obligation relating to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination arising out of this Agreement pursuant to Section 9.01(c)(iior the Debt Financing or the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or Section 9.01(d)(ii)any matters forming the basis for such termination upon payment of such amount. (ce) Each of the parties acknowledges that the agreements contained in this Section 9.03 9.3 are an integral part of the transactions contemplated by this Agreement, and that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller agreements the parties would not enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If In the event of the termination of this Agreement is terminated by Seller or Purchaser the Company pursuant to Section 9.01(bSections 11.1(e) and at if such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) material violation or breach by Parent was willful or intentional, SKT shall have been satisfied or, for those conditions intended the right either (i) to be satisfied at the Closingpaid, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) or to require Purchaser direct payment to pay Seller, promptly following such electiona designee, a termination fee of $2,300,000 10,000,000 (the “Purchaser Termination Fee”), or (ii) to exercise its rights to seek specific performance pursuant to Section 13.12. Any Termination Fee due under the first sentence of this Section 11.3 shall be paid to SKT by wire transfer of immediately available same-day funds within two (2) business days following SKT’s providing notice to Parent of its election to receive the Termination Fee (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee Notice”), which Termination Fee Notice shall be delivered to Parent within five (5) business days following any termination by Parent giving rise to the payment obligation described in the immediately preceding sentence. Notwithstanding anything contained herein to the contrary, including Article XII, if SKT delivers the Termination Fee Notice to Parent and elect the Termination Fee is paid to pursue monetary damages available to Purchaser under SKT or its designee, then the terms Company’s termination of this Agreement (and receipt of payment of the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee by SKT or its designee shall be the sole and exclusive remedyremedy against Parent, including on account of punitive damages, of the Seller Virgin Opco and its Subsidiaries against Purchaser or any of its Subsidiariestheir respective Representatives, Affiliates, stockholders, directors, officers, employees employees, partners, managers, members, or agents stockholders (each, a “Buyer Party”) for any and all Losses Damages suffered as a result of the breach of this Agreement or any representation, warranty, covenant or agreement contained herein by Parent or Virgin Opco or the failure of the Exchange to be consummated or otherwise in connection with this Agreement or the transactions contemplated hereby (such terminationDamages, collectively, “Company Damages”). In no event shall the Company or any Sellers nor their respective Affiliates seek any Company Damages or any other recovery, judgment, or Damages of any kind, including consequential, indirect, or punitive Damages, against any Buyer Party in excess of the Termination Fee from any Buyer Party in connection therewith in the event SKT delivers the Termination Fee Notice to Parent and the Termination Fee is paid to SKT or its designee, and in such event, the Company, its Affiliates and its Subsidiaries shall be precluded from any other remedy against any Buyer Party at law or in equity or otherwise. For the avoidance of doubt, if Seller makes in the Purchaser event SKT delivers the Termination Fee Election Notice to Parent and Purchaser pays the Purchaser Termination Fee is paid to SKT or its designee, the maximum aggregate liability of all Buyer Parties for all Company Damages shall be limited to the Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. Section 39 of the Agreement is hereby amended and restated in its entirety to read as follows: (a) If Seller shall pay $2,000,000 (the “Termination Fee”) to Buyer in the event that (i) Buyer terminates this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b25(f), or (ii) Buyer terminates this Agreement pursuant to Section 25(c) and at such time all conditions set forth Seller or Seller Parent subsequently enters into an agreement providing for, or consummates, an Alternative Transaction. Upon any of the events above, the payment of the amounts in this Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, 39 shall be capable of being satisfiedas promptly as reasonably practicable (in any event, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth within two (2) Business Day Days following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”termination), by wire transfer of in immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive an account specified by Buyer in writing to Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day actual and documented fees and expenses of such termination, by wire transfer of immediately available funds. Notwithstanding anything Buyer relating to the contrary in execution and performance of this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, Agreement (including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of reasonable attorneys’ fees) if Buyer terminates this Agreement pursuant to Section 9.01(c)(ii25(b); provided, however, that if Seller or Seller Parent subsequently enters into an agreement providing for, or consummates, an Alternative Transaction, then Seller shall also pay the Termination Fee to Buyer with the amount of such expenses previously paid by Seller to Buyer under this Section 39(b) or Section 9.01(d)(ii)applied as a credit toward the payment by Seller of the amount of the Termination Fee. (c) Each Seller shall pay actual and documented fees and expenses of Buyer relating to the parties execution and performance of this Agreement (including reasonable attorneys’ fees) if Buyer terminates this Agreement (i) pursuant to Sections 25(g), or (ii) pursuant to Section 25(h) and Seller or Seller Parent subsequently enters into an agreement providing for, or consummates, an Alternative Transaction. (d) Seller acknowledges that the agreements contained in this Section 9.03 39 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller Buyer would not enter into this AgreementAgreement and the amounts payable pursuant to Sections 39(a), 39(b) and 39(c) are not liquidated damages. AccordinglyBuyer may only recover against Seller or Seller Parent under one of Sections 39(a), if Purchaser 39(b) or Seller39(c), even when more than one provision may be applicable, and the decision to recover against Seller and/or Seller Parent under Section 39 and the subsequent decision regarding under which of Sections 39(a), 39(b) or 39(c) to recover shall be in Buyer’s sole and absolute discretion. Upon the occurrence of any of the events set forth in Sections 39(a), 39(b) or 39(c), Buyer shall be entitled to receive payment of the amounts pursuant to those sections, as well as, for any damages actually incurred by Buyer in excess of payments received by Buyer pursuant to Sections 39(a), 39(b) or 39(c), as the case may be, in the event Buyer, in its sole and absolute discretion, elects to recover against Seller and/or Seller Parent under Section 39. If Buyer seeks its remedies as set forth in this Section 39 of the Agreement, and Seller and/or Seller Parent pays the amounts owing to Buyer under this Section 39, then Buyer will not have any right, equitable or otherwise, to require or otherwise compel Seller or Seller Parent to consummate the transactions contemplated by this Agreement. For the avoidance of doubt, the amount of damages that Buyer may recover from Seller and/or Seller Parent pursuant to this Section 39 shall not be governed or limited by Section 20 of this Agreement, which Section 20 only applies to claims for indemnification made by Buyer, Seller or Seller Parent, if any, made by Buyer, Seller or Seller Parent following the Closing provided the Closing occurs. (e) If Seller fails to timely promptly pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, any amount when due in accordance with this Section 9.03the applicable requirements of Sections 39(a), 39(b) and 39(c), and, in order to obtain such payment, Purchaser or Seller, as the case may be, payments Buyer commences a suit that results in a judgment against the other party Seller or Seller Parent for the amounts set forth in this Section 9.03such amount, such paying party Seller shall pay the other party to Buyer its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expensesattorney’s fees) in connection with such suit.”

Termination Fee. (aA) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(dIF THIS AGREEMENT IS TERMINATED BY THE COMPANY PURSUANT TO SECTION 8.1(K)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller in such event the Company shall irrevocably elect no later than 5:00 p.m. Eastern Time on pay Purchaser the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Company Termination Fee”), by wire transfer of Fee in immediately available funds funds, in accordance with Section 6.6(e). (B) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IF THE COMPANY TERMINATION FEE SHALL BECOME DUE AND PAYABLE IN ACCORDANCE WITH THIS SECTION 8.4, then the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Company Termination Fee shall be the sole and exclusive remedy, including on account remedy of punitive damages, Purchaser against the Company from and after such termination and payment of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Company Termination Fee if Seller has not delivered the Purchaser Fee Election in full pursuant to and in accordance with this Section 9.03(a). (b) If 8.4, the Company shall have no further Liability of any kind for any reason in connection with this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of contemplated hereby other than as set forth in Section 8.2 and this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) 8.4. Each of the parties Parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant Company Termination Fee is not intended to Section 9.03(a) or Section 9.03(b) are not be a penalty but rather constitute is liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee Company Termination Fee is payable due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither which amount would otherwise be impossible to calculate with precision. In no event shall Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as be entitled to payment of the case may be, fails to timely pay the Seller Company Termination Fee or Purchaser Termination Feeon more than one occasion. (C) EACH OF THE COMPANY, as applicablePURCHASER AND MERGER SUB ACKNOWLEDGES THAT THE AGREEMENTS CONTAINED IN THIS SECTION ARE AN INTEGRAL PART OF THE TRANSACTIONS CONTEMPLATED HEREBY, when due in accordance with this Section 9.03AND THAT, andWITHOUT THESE AGREEMENTS, in order to obtain such paymentTHE COMPANY, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitPURCHASER AND MERGER SUB WOULD NOT ENTER INTO THIS AGREEMENT.

Termination Fee. (a) If (i) this Agreement is validly terminated by Seller or Purchaser the Sellers pursuant to Section 9.01(b7.1(f) and or (ii) this Agreement is validly terminated by the Buyers pursuant to Section 7.1(c) and, solely in the case of clause (ii), at the time of such time termination all of the conditions set forth in Section 8.01 and Section 8.03 5.1 shall have been previously satisfied (other than Section 8.03(d)) shall have been satisfied orconditions that, for those conditions intended by their nature are to be satisfied at the ClosingClosing and which were, shall be as of such date, capable of being satisfied), Sellers have confirmed that they are prepared to consummate the transaction and the Buyers have failed to consummate the transaction (clauses (i) and (ii) each, a “Financing Failure Termination Event”), then Seller the Buyers shall irrevocably elect no later than 5:00 p.m. Eastern Time on pay to the fifth Business Day following such termination either (x) Sellers a fee equal to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 13,000,000 (the “Purchaser Financing Failure Termination Fee”), by wire transfer of immediately available funds ) within three (the “Purchaser Fee Election”3) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of Business Days after such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges The Buyers acknowledge that the agreements contained in this Section 9.03 7.3 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller the Sellers would not enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails Buyers fail to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when any amounts due in accordance with pursuant to this Section 9.037.3, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit Sellers commence an Action that results in a judgment against the other party Buyers for the amounts set forth in this Section 9.03, such paying party payment of the Financing Failure Termination Fee the Buyers shall pay to the other party its Sellers their reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitAction. (c) The Parties acknowledge and agree that any amount payable pursuant to Section 7.3(a) does not constitute a penalty but shall constitute liquidated damages to compensate the Sellers. If a Financing Failure Termination Event occurs, the payment of the Financing Failure Termination Fee (together with any expenses payable pursuant to Section 7.3(c)) shall be the sole and exclusive remedy of the Sellers, any of their Affiliates or their respective former, current or future equityholders, controlling persons, partners, directors, officers, employees, service providers, financing sources, including, without limitation, with respect to the Debt Financing, advisors or representatives (collectively, the “Seller Parties”) against the Buyers or any of their Affiliates or their respective former, current or future equityholders, controlling persons, partners, directors, officers, employees, service providers, Debt Financing Sources, advisors or representatives (collectively, the “Buyer Parties”) with respect to any breach of any representation, warranty, covenant or obligation in connection with this Agreement or the Transaction Documents or the transactions contemplated hereby and thereby and upon the Seller Parties’ receipt of such amounts, none of the Buyer Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transaction Documents or the transactions contemplated hereby and thereby. The Parties acknowledge and agree that in no event shall the Buyers pay the Financing Failure Termination Fee on more than one occasion. (d) Notwithstanding anything to the contrary contained herein, the Parties further acknowledge and agree that, upon a Financing Failure Termination Event, none of the Buyer Parties shall have any liability under, or with respect to this Agreement or the transactions contemplated herein (other than the Buyers for the payment of the Financing Failure Termination Fee, as provided herein), and the Sellers agree that they shall not, and shall not allow any Seller Party to, bring any cause of action against or otherwise seek remedies from any Buyer Party, whether at equity or in law, for breach of contract, in tort or otherwise, and any such claim is hereby fully waived, released and forever discharged (other than actions against the Buyers for the failure to pay the Financing Failure Termination Fee, as provided herein, or under Section 8.6 for specific performance in accordance with Section 8.6); provided, that in the event of a Financing Failure Termination Event the aggregate liability of the Buyer Parties under, or related to, this Agreement prior to the Closing (whether or not this Agreement is terminated, and regardless of the reason for any such termination) shall not exceed the Financing Failure Termination Fee, together with any expenses payable pursuant to Section 7.3(c) (e) Each Party acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated herein and that, without these agreements, the Parties would not enter into this Agreement.

Termination Fee. To compensate Purchaser for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities, Seller and Purchaser agree as follows: (a) If Provided that Purchaser shall not be in breach of any covenant or obligation qualified by materiality under this Agreement or in material breach of any covenant or obligation under this Agreement not so qualified (which breach has not been cured within fifteen (15) days following receipt of written notice thereof by the Seller specifying in reasonable detail the basis of such alleged breach), as further specified in Section 8.1(c), Seller shall pay to Purchaser the sum of two hundred fifty thousand dollars ($250,000) if this Agreement is terminated by Purchaser under the provisions of Section 8.1(c); provided, further that no fee shall be payable in respect of the inability of Seller to satisfy the conditions set forth in Section 7.2(f) or Section 7.2(g). (b) Provided that Purchaser shall not be in breach of any covenant or obligation qualified by materiality under this Agreement or in material breach of any covenant or obligation under this Agreement not so qualified (which breach has not been cured within fifteen (15) days following receipt of written notice thereof by the Seller specifying in reasonable detail the basis of such alleged breach), Seller shall pay to Purchaser the sum of two hundred fifty thousand dollars ($250,000) if this Agreement is terminated by Purchaser under the provisions of Section 8.1(g) or Section 8.1(k). (c) Provided that Purchaser shall not be in breach of any covenant or obligation qualified by materiality under this Agreement or in material breach of any covenant or obligation under this Agreement not so qualified (which breach has not been cured within fifteen (15) days following receipt of written notice thereof by the Seller specifying in reasonable detail the basis of such alleged breach), Seller shall pay to Purchaser the sum of five hundred thousand dollars ($500,000) if this Agreement is terminated by Seller or Purchaser pursuant to under the provisions of Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”8.1(i) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to by Purchaser under the terms provisions of this Agreement Section 8.1(h). (d) The payment of the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, remedy of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled terminating party with respect to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant as set forth in this Section 8.4 (in addition to the costs and expenses identified in Section 9.01(c)(ii8.4(e) below); provided, however, that nothing herein shall preclude or bar Purchaser from asserting or enforcing any such claim against any person other than Seller, Seller’s Affiliates and their respective officers, directors, employees and shareholders. (e) Any payment required by Section 8.4(a), Section 8.4(b) or Section 9.01(d)(ii)8.4(c) shall become payable within two business days after termination of this Agreement. (cf) Each of the parties acknowledges Purchaser and Seller each acknowledge that the agreements contained in this Section 9.03 ARTICLE VIII are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would not enter into this Agreement. Accordingly; accordingly, if Purchaser or Seller, as the case may be, Seller fails to timely promptly pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when amount due in accordance with pursuant to this Section 9.03, 8.4 and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that which results in a judgment against the other party Seller for the amounts set forth in this Section 9.03applicable termination fee, such paying party Seller shall pay the other party Purchaser its reasonable and documented costs and expenses (including reasonable and documented necessary attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If Notwithstanding Section 11.3 above, in the event that there is a valid and effective termination of this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 11.1(e), (other than as a result of any breach of Section 8.03(d8.8, Section 8.9 or Section 8.10 (in each case of Section 8.9 and Section 8.10, solely as it relates to any Consent set forth on Schedule 10.1(c)) ); then the Company shall have been satisfied or, for those conditions intended pay to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee equal to Two Million Three Hundred Thousand U.S. Dollars ($2,300,000), plus the Expenses actually incurred by or on behalf of $2,300,000 Purchaser or any of its Affiliates in connection with the authorization, preparation, negotiation, execution or performance of this Agreement or the Ancillary Documents or the Transactions, including any related SEC filings, the Registration Statement, the Proxy Statement, the Redemption and any PIPE Investment (such aggregate amount, the “Purchaser Termination Fee”), . The Termination Fee shall be paid by wire transfer of immediately available funds (the “to an account designated in writing by Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms following such termination of this Agreement and within five (5) Business Days after Purchaser delivers to the “Purchaser Damages Election”)Company the amount of such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee ElectionParties expressly acknowledge and agree that, and Purchaser pays with respect to any termination of this Agreement in circumstances where the Purchaser Termination Fee pursuant to is payable, the preceding sentence, such Purchaser payment of the Termination Fee shall be shall, in light of the sole and exclusive remedy, including on account difficulty of punitive accurately determining actual damages, of constitute liquidated damages with respect to any claim for damages or any other claim which Purchaser would otherwise be entitled to assert against the Company, Pubco, Merger Sub, any Seller and its Subsidiaries against Purchaser or any of its Subsidiariestheir respective Affiliates or any of their respective assets, Affiliates, stockholders, or against any of their respective directors, officers, employees or agents for any shareholders with respect to this Agreement and all Losses suffered as a result the Transactions and shall constitute the sole and exclusive remedy available to Purchaser, provided, that the foregoing shall not limit the rights of such terminationPurchaser to seek specific performance or other injunctive relief to consummate the Transactions in lieu of (and not in addition to) of terminating this Agreement. For the avoidance of doubt, if Seller makes in the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of a breach of the termination of covenants in Section 8.8, Section 8.9 or Section 8.10 (solely as such Sections 8.9 and 8.10 relate to any Consent set forth on Schedule 10.1(c)) and a Termination Fee is not payable hereunder, nothing in this Agreement pursuant shall limit or otherwise prejudice Purchaser’s right to Section 9.01(c)(ii) pursue any other remedies which Purchaser may have at law or Section 9.01(d)(ii)in equity including, but not limited to, the right to seek monetary damages. (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If Seller shall pay $1,000,000 (the “Termination Fee”) to Buyer in the event that (i) Buyer terminates this Agreement is terminated pursuant to Section 25(f) (as a result of a breach by Seller or Purchaser Seller Parent of Section 40(a)), (ii) pursuant to Section 9.01(b40(b) and at such time all conditions set forth Seller or Seller Parent subsequently enters into an agreement providing for, or consummates, an Alternative Transaction, or (iii) Buyer terminates this Agreement pursuant to Section 25(c), and Seller or Seller Parent subsequently enters into an agreement providing for, or consummates, an Alternative Transaction. Upon any of the events above, the payment of the amounts in this Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, 39 shall be capable of being satisfiedas promptly as reasonably practicable (in any event, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth within two (2) Business Day Days following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”termination), by wire transfer of in immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right an account specified by Buyer in writing to receive the Purchaser Termination Fee Seller and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, remedy available to such party for such termination of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)Agreement. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day actual and documented fees and expenses of such termination, by wire transfer of immediately available funds. Notwithstanding anything Buyer relating to the contrary in execution and performance of this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, Agreement (including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of reasonable attorneys’ fees) if Buyer terminates this Agreement pursuant to Section 9.01(c)(ii25(b); provided, however, that if Seller or Seller Parent subsequently enters into an agreement providing for, or consummates, an Alternative Transaction, then Seller shall also pay the Termination Fee to Buyer with the amount of such expenses previously paid by Seller to Buyer under this Section 39(b) or Section 9.01(d)(ii)applied as a credit toward the payment by Seller of the amount of the Termination Fee. (c) Each Seller shall pay actual and documented fees and expenses of Buyer relating to the parties execution and performance of this Agreement (including reasonable attorneys’ fees) if Buyer terminates this Agreement (i) pursuant to Sections 25(g), or (ii) pursuant to Section 25(h) and Seller or Seller Parent subsequently enters into an agreement providing for, or consummates, an Alternative Transaction. (d) Seller acknowledges that the agreements contained in this Section 9.03 39 are an integral part of the transactions contemplated by this Agreement, that the damages resulting from the termination of this Agreement under circumstances where a Termination Fee are payable are uncertain and incapable of accurate calculation and that the amounts (if any) payable pursuant to Section 9.03(aSections 39(a) or Section 9.03(band 39(b) are not a penalty but rather reasonable forecasts of the actual damages which may be incurred and constitute liquidated damages in and not a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebypenalty, and that, without these agreements, neither Purchaser nor Seller Buyer would not enter into this Agreement. Accordingly; accordingly, if Purchaser or Seller, as the case may be, Seller fails to timely promptly pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03the applicable requirements of Sections 39(a) and 39(b), and, in order to obtain such payment, Purchaser or Seller, as the case may be, payments Buyer commences a suit that which results in a judgment against the other party Seller or Seller Parent for the amounts set forth in this Section 9.03Termination Fee, such paying party Seller shall pay the other party to Buyer its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expensesattorney’s fees) in connection with such suit.

Termination Fee. (a) If (i) this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(bother than with respect 10.01(c) and at such time all conditions set forth in Section 8.01 (ii) ListCo sells and Section 8.03 (other than Section 8.03(d)) issues Equity Securities during the Interim Period except for the Exempt Issuance, then, ListCo shall have been satisfied orpay, for those conditions intended or cause to be satisfied paid, to the Company, in cash at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on time specified in the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such electionsentence, a termination fee in the amount equal to the higher of (i) 70% of cash ListCo has as of the date of Termination by ListCo or the Company, as applicable, and (ii) $2,300,000 2,000,000 (the “Purchaser ListCo Termination Fee”), . The ListCo Termination Fee shall be paid as follows within ten (10) Business Days after the date of termination of this Agreement. (b) Any payment of the ListCo Termination Fee or the Collection Expenses shall be made by wire transfer of immediately available funds to an account designated in writing by the Company. (c) The Parties agree and understand that (i) in no event shall ListCo be required to pay, or cause to be paid, the “Purchaser ListCo Termination Fee Election”on more than one occasion and (ii) or (y) in no event shall the Company be entitled, pursuant to irrevocably waive Seller’s right this Section 10.03, to receive an amount greater than the Purchaser ListCo Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”)plus any Collection Expenses. Notwithstanding anything to the contrary in this Agreement, if Seller makes except in the Purchaser Fee Electioncase of fraud, and Purchaser pays (x) the Purchaser Company’s receipt of the ListCo Termination Fee in the event such ListCo Termination Fee is due and payable pursuant to the preceding sentenceSection 10.03(a) from, such Purchaser Termination Fee or on behalf of, ListCo pursuant thereto, together with any Collection Expenses, shall be the sole and exclusive remedy, including on account of punitive damages, remedy of the Seller Company against ListCo and its Subsidiaries against Purchaser Group Companies and their respective former, current or future partners, stockholders, shareholders, managers, members, Affiliates and Representatives and none of ListCo, any of its Group Companies or any of its Subsidiariestheir respective former, Affiliatescurrent or future partners, stockholders, directorsshareholders, officersmanagers, employees members, Affiliates or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser Representatives shall have no other any further liability for or obligation relating to or arising out of this Agreement or the Transactions, and (y) if the Company receives any payments from, or on behalf of, ListCo, Merger Sub Inc. in respect of any breach of this Agreement (regardless of and thereafter the time of breach). If Seller makes Company receives the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller ListCo Termination Fee pursuant to this Section 10.03, the preceding sentence amount of such ListCo Termination Fee, as applicable, shall be reduced by the sole and exclusive remedyaggregate amount of such payments made by, including or on account behalf of, ListCo in respect of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges such breaches. The Parties acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this AgreementTransactions, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller the Company would not enter into this AgreementAgreement and that any amounts payable pursuant to this Section 10.03 do not constitute a penalty. Accordingly, if Purchaser or Seller, as the case may be, ListCo fails to timely promptly pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when any amount due in accordance with pursuant to this Section 9.0310.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party ListCo shall also pay the other party its any reasonable and documented costs and expenses (including reasonable and documented attorneys’ legal fees and expenses) incurred by the Company directly in connection with a legal action to enforce this Agreement that results in a judgment for such suitamount against ListCo (such costs and expenses of enforcement, “Collection Expenses”). (d) For avoidance of doubt, if (i) this Agreement is terminated and (ii) ListCo does not sell or issue Equity Securities during the Interim Period, except for the Exempt Issuance, each party hereto shall bear its own expenses incurred in connection with this Agreement and the other Transaction Agreements and the transactions herein and therein contemplated, including all fees of its legal counsel, financial advisers and accountants.

Termination Fee. (a) If In the event that (i)(A) this Agreement is terminated by Seller or Purchaser either Party pursuant to Section 9.01(b11.1(b) and and, at the time of such time all conditions termination, the condition set forth in Section 8.01 10.2(e) with respect to a Government Approval from a Government Antitrust Authority shall not have been satisfied or waived, or (B) this Agreement is terminated by either Party pursuant to Section 11.1(e) (and such Order is issued by a Government Antitrust Authority), and at the time of such termination under either Section 8.03 11.1(b) or Section 11.1(e), all other conditions to consummate the Transactions set forth in Section 10.2 have been satisfied or waived (other than Section 8.03(d)) shall have been satisfied or, for those the conditions intended that by their terms are to be satisfied at the Closing, shall be capable ) or (ii) Seller Parent terminates this Agreement under Section 11.1(f) or Buyers otherwise fail to close the Transactions in breach of being satisfiedthis Agreement (and no Seller is in material breach of this Agreement), then in each case, Buyer Parent shall pay Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, Parent a non-refundable termination fee of $2,300,000 two billion, five hundred million Yen (¥2,500,000,000) (the “Purchaser Termination Fee”), ) by wire transfer of immediately available funds within twenty (20) Business Days of such date. Buyer Parent agrees that Buyers shall not seek to frustrate Seller Parent’s entitlement to the “Purchaser Termination Fee Election”(in the circumstances in which it would otherwise be payable pursuant to this Section 11.3(a)) or by failing to use their commercially reasonable efforts (yas provided in Section 7.3 hereof) to irrevocably waive Seller’s right cause the satisfaction of the conditions to receive Buyers’ obligations to consummate the Purchaser Transactions. Only a single Termination Fee and elect may be paid pursuant to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole Parent and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges Buyer Parent agree that the agreements contained in this Section 9.03 11.3 are an integral part of the transactions contemplated by this Agreement, that Transactions and the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are Termination Fee constitutes liquidated damages and not a penalty but rather constitute liquidated damages in penalty. Notwithstanding any other provision of this Agreement to the contrary, the sole remedy of Sellers for any loss or damage of any nature as a reasonable amount that will compensate Purchaser or Seller, as applicable, in result of the circumstances set forth in which such termination fee is payable for Section 11.3(a) shall be Sellers’ right to receive the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicablewhich will constitute the sole and exclusive remedy of any nature whatsoever (whether for money, when due in accordance with this Section 9.03, and, in order specific performance or otherwise) against Buyers. The obligation to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitTermination Fee shall survive the termination of this Agreement.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b8.1(a) and (or is terminated pursuant to another subsection of Section 8.1 but at such time the Sellers could have validly terminated pursuant to Section 8.1(a)) of and all conditions set forth to Closing contained in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall 7.1 have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be fulfilled or are capable of being satisfiedfulfilled except for Section 7.1(e) and/or Section 7.1(f), then Seller notwithstanding any other provision of this Agreement but without limiting any right of the Sellers to an injunction, specific performance or other non-monetary equitable relief in accordance with Section 10.8, the Sellers shall irrevocably elect no later than 5:00 p.m. Eastern Time on have the fifth Business Day following such termination either (x) right to require Purchaser the Buyer to pay, and if so elected, the Buyer hereby agrees to pay Sellerimmediately to the Sellers, promptly following as liquidated damages in connection with any such electiontermination, a termination fee of $2,300,000 (the “Purchaser an amount equal to Regulatory Termination Fee”), Fee by wire transfer of immediately available funds (in U.S. dollars to an account designated in writing by the “Purchaser Fee Election”) or (y) Sellers; provided, the Sellers shall have the right immediately to irrevocably waive Seller’s right draw on the Letter of Credit to receive satisfy such payment obligation of the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”)Buyer in their sole discretion. Notwithstanding anything to the contrary in this Agreementforegoing, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Regulatory Termination Fee shall not be due pursuant to this Section 8.3(a) in the sole and exclusive remedy, including on account event of punitive damages, of a termination pursuant to Section 8.1(a) in the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered event that the condition(s) set forth in Section 7.1(e) and/or Section 7.1(f) are not fulfilled solely as a result of (x) a failure to obtain any Permits that a Governmental Entity has conditioned upon the Buyer taking an action or refraining to take any action in order to obtain such termination. For Permits that, individually or in the avoidance aggregate, would reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the business, assets, properties, condition (financial or otherwise) or results of doubtoperations of the Buyer, if Seller makes the Purchaser Fee Election Company and Purchaser pays its Subsidiaries, taken as a whole, after giving effect to the Purchaser Termination Feetransactions contemplated hereby and/or (y) any action or failure to act by the Sellers, Purchaser shall have no other liability for any the Company or its Subsidiaries that is a breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants Sellers’ obligations under this Agreement and/or (z) (A) any Law issued by a Governmental Entity from whom a Permit is required in order to consummate the transactions contemplated by this Agreement or (B) an Order in effect prohibiting, enjoining, restricting or making illegal the transaction contemplated by this Agreement, and such Order was sought by a Person other than Section 5.14, which shall be subject a Governmental Entity from whom a Permit is required in order to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay consummate the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with transactions contemplated by this Section 9.03(a)Agreement. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii8.1(d) (or is terminated pursuant to another subsection of Section 9.01(d)(ii8.1 but at such time the Sellers could have validly terminated pursuant to Section 8.1(d)), then Seller notwithstanding any other provision of this Agreement but without limiting any right of the Sellers to an injunction, specific performance or other non-monetary equitable relief in accordance with Section 10.8, the Sellers shall have the right to require the Buyer to pay, and if so elected, the Buyer hereby agrees to pay Purchaser $2,300,000 (immediately to the “Seller Termination Fee”) not later than the day of Sellers, as liquidated damages in connection with any such termination, an amount equal to Regulatory Termination Fee by wire transfer of immediately available fundsfunds in U.S. dollars to an account designated in writing by the Sellers; provided, the Sellers shall have the right immediately to draw on the Letter of Credit to satisfy such payment obligation of the Buyer in their sole discretion. Notwithstanding anything to the contrary in this Agreementforegoing, Purchaser’s receipt of the Seller Regulatory Termination Fee shall not be due pursuant to this Section 8.3(b) in the preceding sentence shall be event of a termination pursuant to Section 8.1(d) in the sole and exclusive remedyevent that a nonappealable Order prohibiting, including on account of punitive damagesenjoining, of restricting or making illegal the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered transaction contemplated by this Agreement is entered solely as a result of (x) a failure by the termination Buyer to take any action or refrain from taking any action requested by a Governmental Entity that, individually or in the aggregate, would reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the business, assets, properties, condition (financial or otherwise) or results of operations of the Buyer, the Company and its Subsidiaries, taken as a whole, after giving effect to the transactions contemplated hereby and/or (y) any action or failure to act by the Sellers, the Company or its Subsidiaries that is a breach of the Sellers’ obligations under this Agreement pursuant and/or (z) (A) any Law issued by a Governmental Entity from whom a Permit is required in order to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of consummate the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.or

Termination Fee. (a) If (i) the Company and the Representative terminate this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b10.01(c) or Section 10.01(g), (ii) the Company and Representative terminate this Agreement pursuant to Section 10.01(f) at such a time all conditions set forth in Section 8.01 when the Company and Section 8.03 (other than Section 8.03(d)) shall the Representative would have been satisfied orpermitted to terminate this Agreement pursuant to Section 10.01(g), for those conditions intended or (iii) the Purchaser terminates this Agreement pursuant to be satisfied Section 10.01(e) at a time when the Closing, shall be capable of being satisfiedCompany and the Representative would have been permitted to terminate this Agreement pursuant to Section 10.01(g), then Seller the Purchaser shall irrevocably elect no later than 5:00 p.m. Eastern Time on pay to the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, Company a termination fee of equal to $2,300,000 45,000,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds to one or more accounts designated in writing by the Representative within five (5) Business Days of the “date of such termination. In no event shall the Purchaser Fee Election”) be required to pay or (y) to irrevocably waive Seller’s right cause to receive be paid the Purchaser Termination Fee on more than one occasion whether or not the Purchaser Termination Fee may be payable at different times or upon the occurrence of different events. (b) Each party hereto confirms that each event or circumstance giving rise to the obligation to pay the Purchaser Termination Fee would cause significant damage to the Sellers, the Company and elect their respective Affiliates that would be inherently difficult to pursue monetary quantify and prove, and that the Purchaser Termination Fee provided for hereunder is intended to provide fair compensation in response to that damage, is not intended to be punitive, and is reasonable in amount in relation to the circumstances under which it would become payable. In the circumstances in which the Purchaser Termination Fee is payable in accordance with Section 10.03(a), the Company’s receipt of the Purchaser Termination Fee from the Purchaser pursuant to Section 10.03(a) shall be deemed to be liquidated damages available to Purchaser under the terms of this Agreement and not a penalty. (the “Purchaser Damages Election”). c) Notwithstanding anything to the contrary in this Agreement, if Seller makes in the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller event that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii10.01, the rights of the applicable parties under the Confidentiality Agreement, the Company’s right to receive the Purchaser Termination Fee from the Purchaser pursuant to Section 10.03(a) or seek recovery for any other amounts owing pursuant to Section 9.01(d)(ii)7.07(f) (and the rights of the applicable parties under the Guaranties in respect thereof, then Seller shall pay Purchaser $2,300,000 (including the “Seller Termination Fee”) not later than right of the day applicable parties to receive payment of such termination, by wire transfer of immediately available funds. Notwithstanding anything to amounts from the contrary in this Agreement, Purchaser’s receipt applicable Sponsor under each of the Seller Termination Fee pursuant to Guaranties on the preceding sentence terms and conditions set forth therein) shall be the sole and exclusive remedyremedy of the Company, including on account the Sellers and the Trilogy Parties and any Person claiming by, through or for the benefit of punitive damagesthe Company, of the Sellers or the Trilogy Parties against (i) the Purchaser and its Subsidiaries against Seller the Sponsors, (ii) any Debt Financing Source, (iii) the former, current and future holders of any equity, partnership or any of its Subsidiarieslimited liability company interest, Affiliates, stockholderscontrolling persons, directors, officers, employees employees, agents, attorneys, Affiliates, members, managers, general or agents limited partners, stockholders or assignees of any Person named in clause (i) or (ii) of this Section10.03(c), and (iv) any future holders of any equity, partnership or limited liability company interest, controlling persons, management companies, directors, officers, employees, agents, attorneys, representatives, Affiliates, members, managers, general or limited partners, or shareholders of any of the foregoing (the Persons described in clauses (i), (ii), (iii) and (iv), collectively, the “Purchaser Group”) for any Loss (whether in law or equity and all Losses whether based on contract, tort or otherwise) suffered as a result of any breach of any representation, warranty, covenant or agreement hereunder, the failure of the Contemplated Transactions to be consummated in accordance with this Agreement, or otherwise based upon, arising out of or relating to this Agreement, the Financing or the Commitment Letters (including any breach or alleged breach hereof or thereof), the negotiation, execution or performance hereof or thereof or the transactions contemplated hereby or thereby or in respect of any oral or written representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. (d) Notwithstanding any other provision of this Agreement, but except with respect to (i) the applicable parties’ obligations under the Confidentiality Agreement and (ii) without limiting the right of the Representative to seek specific performance prior to termination of this Agreement pursuant to under, and in accordance with the terms and conditions of, the Equity Commitment Letter and Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each 13.14, each of the parties acknowledges Sellers, the Company and the Trilogy Parties agrees that the agreements contained in this Section 9.03 are an integral part maximum aggregate monetary liability of the transactions contemplated by this AgreementPurchaser and any other member of the Purchaser Group to the Sellers, that the amounts (if any) payable pursuant to Section 9.03(a) Company and the Trilogy Parties or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser any Person claiming by, through or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation benefit of the consummation Sellers, the Company or the Trilogy Parties for any Loss (whether in law or equity and whether based on contract, tort or otherwise) suffered as a result of any breach of any representation, warranty, covenant or agreement hereunder prior to termination, the failure of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails Contemplated Transactions to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due be consummated in accordance with this Section 9.03Agreement, andor otherwise based upon, arising out of or relating to this Agreement, the Financing or the Commitment Letters (including any breach or alleged breach hereof or thereof), the negotiation, execution or performance hereof or thereof or the transactions contemplated hereby or thereby or in respect of any other theory of law or equity or in respect of any oral or written representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in order contract, in tort or otherwise shall be limited to obtain such paymentan amount equal to the sum of the Purchaser Termination Fee paid pursuant to Section 10.03(c) plus any other amounts owing pursuant to Section 7.07(f) and in no event (except with respect to the applicable parties’ obligations under the Confidentiality Agreement and without limiting the right of the Representative to seek specific performance prior to termination of this Agreement under, and in accordance with the terms and conditions of, the Equity Commitment Letter and Section 13.14) shall the Sellers, the Company or the Trilogy Parties seek to recover any money damages in excess of an amount equal to the sum of the Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the Termination Fee paid pursuant to Section 10.03(c) and any other party for the amounts set forth in this owing pursuant to Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit7.07(f).

Termination Fee. In the event that (a) If this Agreement is terminated by Seller or Purchaser pursuant to each of the closing conditions set forth in each of Section 9.01(b6.1 and Section 6.3 have been satisfied and (b) and at such time all the closing conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall 6.2 have been satisfied oror waived by the MGM Parties or in the case of (a) and (b) would have been satisfied but for Purchaser failing to use its Commercially Reasonable Efforts to perform its obligations under this Agreement in accordance with the terms and conditions of this Agreement, for those conditions intended the MGM Parties shall have the right to give written notice to Purchaser of their intention to terminate this Agreement if Purchaser fails to close (or be satisfied at prepared to close) the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time transactions contemplated by this Agreement on or prior to the fifth Business Day following receipt of such written notice and as promptly as practicable following termination either (xwhich shall occur automatically on such fifth Business Day unless agreed to otherwise by the Parties in writing) Purchaser shall pay, or cause to require Purchaser be paid, in same day funds to pay Seller, promptly following such election, a termination fee of Seller $2,300,000 10,000,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Only one Termination Fee shall be payable to Seller regardless of the sole circumstances. In the event Seller receives payment of the Termination Fee, Seller, and exclusive Seller on behalf of its Affiliates, agrees to forego and not to pursue (or aid any other Person in pursuing) or assign any allegation, claim, right or remedy, whether legal or equitable, including on account of punitive damagesspecific performance, of the Seller and its Subsidiaries against against, directly or indirectly, Purchaser or any of its Subsidiaries, Affiliates, stockholders▇▇▇▇▇▇▇ Poster, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller ▇▇▇▇▇▇ Breitling or any of its Subsidiariestheir respective agents, Affiliates, stockholders, directors, officers, employees or agents representatives and counsel for any and all Losses suffered as a result of the termination of this Agreement pursuant Purchaser’s failure to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of consummate the transactions contemplated by this Agreement, that . The obligation of Purchaser to pay the amounts (if any) payable Termination Fee pursuant to this Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in 5.20 shall be guaranteed by ▇▇▇▇▇▇▇ Poster and ▇▇▇▇▇▇ Breitling pursuant to the circumstances in which such termination fee is payable for Guaranty. Subject to the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation occurrence of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts matters set forth in subsection (a) and subsection (b) of the first sentence of this Section 9.035.20, such paying party shall pay the other party its Parties acknowledge and agree that (i) the MGM Parties would sustain substantial damages in the event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser’s failure to close and (ii) Seller’s actual damages in the event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser’s failure to close would be difficult or impractical to determine, and the Termination Fee represents a reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) estimate of the harm likely to be suffered by Seller in connection with such suitthe event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser’s failure to close.

Termination Fee. (a) If Notwithstanding Section 9.3 above, in the event that there is a termination of this Agreement is terminated by Seller or the Purchaser pursuant to Section 9.01(b9.1(e) and at such time all conditions set forth in or Section 8.01 and Section 8.03 (other than Section 8.03(d9.1(f)) , the Company shall have been satisfied or, for those conditions intended pay to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee equal to the Expenses actually incurred by or on behalf of $2,300,000 the Purchaser or any of its Affiliates in connection with the authorization, preparation, negotiation, execution or performance of this Agreement or the transactions contemplated hereby, including any related SEC filings (the “Purchaser Termination Fee”). In the event that there is a termination of this Agreement by the Company (and on behalf of the Sellers) pursuant to Section 9.1(d) or Section 9.1(g), the Purchaser shall pay to the Company and the Sellers the Termination Fee equal to the Expenses actually incurred by or on behalf of the Company, the Sellers and any of their Affiliates. The Termination Fee shall be paid by wire transfer of immediately available funds to an account designated in writing by the Purchaser, or by the Company, within ten (10) Business Days after the “Purchaser Fee Election”) or (y) notifying Party delivers to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under other Party the terms amount of this Agreement (the “Purchaser Damages Election”)such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee ElectionParties expressly acknowledge and agree that, and Purchaser pays the Purchaser Termination Fee pursuant with respect to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each in circumstances where the Termination Fee is payable, the payment of the parties acknowledges that the agreements contained Termination Fee shall, in this Section 9.03 are an integral part light of the transactions contemplated by this Agreementdifficulty of accurately determining actual damages, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser with respect to any claim for damages or Sellerany other claim which the Purchaser, as applicable, in or the circumstances in which such termination fee is payable for Company and the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or SellerSellers, as the case may be, fails would otherwise be entitled to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment assert against the other party for Party or its Affiliates or any of its assets, or against any of its directors, officers, employees or shareholders with respect to this Agreement and the amounts set forth transactions contemplated hereby and shall constitute the sole and exclusive remedy available to the notifying Party (or Parties), provided, that the foregoing shall not limit the rights of the notifying Party (or Parties) to seek specific performance or other injunctive relief in lieu of terminating this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitAgreement.

Termination Fee. (a) If this Agreement is terminated, or if terminated by Seller or Purchaser pursuant to another provision, was capable of being terminated (i) pursuant to Section 9.01(b10.1(d) based upon a Court Order enjoining the consummation of the Transactions under applicable Antitrust Laws, (ii) pursuant to Section 10.1(c) on the basis that the Buyer has breached (and not cured) its obligations under Section 5.2, (iii) pursuant to Section 10.1(e) where the Buyer has breached its obligations under Section 5.2; provided that solely for purposes of this Section 10.4(a)(iii), the Buyer shall not be deemed to have breached its obligations under Section 5.2(e)(ii) if it used reasonable best efforts to comply therewith, or (iv) pursuant to Section 10.1(f) and at the time of such time all termination the conditions set forth in Section 8.01 either Sections 7.2 and Section 8.03 (other than Section 8.03(d)) shall 8.2 or Sections 7.4 and 8.5 have not been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfiedmet, then the Buyer shall pay the Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on an amount totaling twenty million dollars ($20,000,000) (the fifth “Termination Fee”) promptly (and in any event within two (2) Business Day Days) following such termination either of this Agreement. (xb) to require Purchaser to pay The Parties acknowledge and agree that the Termination Fee has been agreed upon, after negotiation, as the Parties’ reasonable estimate of Seller, promptly following such election, ’s damages that would be caused by a termination fee of $2,300,000 (the “Purchaser Termination Fee”of, or failure to close under, this Agreement as described in Section 10.4(a), by wire transfer and that an award of immediately available funds (such liquidated damages in the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive amount of the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole Seller’s exclusive remedy against Buyer and exclusive remedy, including on account of punitive damages, its Affiliates (and any Financing Sources of the Buyer) for any Losses incurred by Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered Affiliates as a result of such terminationtermination or failure to close. For the avoidance of doubtIn addition, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required Buyer fails promptly to pay the Purchaser Termination Fee if amount due to the Seller has not delivered the Purchaser Fee Election in accordance with pursuant to this Section 9.03(a10.4, it shall also pay (i) interest thereon at the prime rate as published in The Wall Street Journal plus five percent (5%). , plus (bii) If any costs and expenses incurred by the Seller in connection with a legal action to enforce this Agreement is terminated pursuant to Section 9.01(c)(ii) that results in a judgment against or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (settlement with the “Seller Termination Fee”) not later than the day of Buyer for such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)amount. (c) Each of the parties acknowledges The Parties acknowledge that the agreements contained in this Section 9.03 10.4 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyTransactions, and that, without these agreements, neither Purchaser nor Seller the Parties would not enter into this Agreement. AccordinglyIn light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, if Purchaser or Seller, as the case may be, fails to timely pay Parties acknowledge that the Seller Termination Fee or Purchaser Termination Fee, as applicablein the circumstances in which it becomes payable, when due in accordance with constitute a reasonable estimate of the Losses that will be suffered by reason of any termination of this Agreement where the Termination Fee is payable and constitutes liquidated damages and is not a penalty; provided, however, that the Termination Fee shall be reduced by an amount equal to the sum of: (i) the aggregate amount of the Seller’s expenses that are reimbursed by the Buyer under Section 9.03, 5.2; and, in order to obtain such payment, Purchaser or Seller, as (ii) the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs fees and expenses (including reasonable and documented attorneys’ fees and expenses) of the Buyer that are incurred in connection with such suitlitigating with a Governmental Authority following the filing by that Governmental Authority of a complaint, which is not filed contemporaneously with a proposed final judgment proposing the resolution of the matter, seeking to restrain or enjoin the carrying out of this Agreement or the consummation of the transactions contemplated by this Agreement.

Termination Fee. (a) If Notwithstanding Section 10.3 above, in the event that there is a valid and effective termination of this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b10.1(f) and at such time all conditions set forth in or Section 8.01 and Section 8.03 (other than Section 8.03(d)10.1(i) then the Company shall have been satisfied or, for those conditions intended pay to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee equal to Three Million U.S. Dollars ($3,000,000) plus the Expenses actually incurred by or on behalf of $2,300,000 Purchaser or any of its Affiliates in connection with the authorization, preparation, negotiation, execution or performance of this Agreement or the Ancillary Documents or the Mergers or the other transactions contemplated hereby or thereby, including any related SEC filings, the Registration Statement, the Redemption and any PIPE Investment (such aggregate amount, the “Purchaser Company Termination Fee”), . The Company Termination Fee shall be paid by wire transfer of immediately available funds to an account designated in writing by Purchaser within five (5) Business Days after Purchaser delivers to the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive Company the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms amount of this Agreement (the “Purchaser Damages Election”)such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee ElectionParties expressly acknowledge and agree that, and Purchaser pays with respect to any termination of this Agreement in circumstances where the Purchaser Company Termination Fee pursuant to is payable, the preceding sentence, such Purchaser payment of the Company Termination Fee shall be shall, in light of the sole and exclusive remedy, including on account difficulty of punitive accurately determining actual damages, of constitute liquidated damages with respect to any claim for damages or any other claim which Purchaser would otherwise be entitled to assert against the Seller and its Subsidiaries against Purchaser Company or any of its SubsidiariesAffiliates or any of their respective assets, Affiliates, stockholders, or against any of their respective directors, officers, employees or agents shareholders with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Purchaser, provided, that the foregoing shall not limit (x) the Company from Liability for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach Fraud Claim relating to events occurring prior to termination of this Agreement or (regardless y) the rights of the time Purchaser to seek specific performance or other injunctive relief in lieu of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under terminating this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)Agreement. (b) If Notwithstanding Section 10.3 above, in the event that there is a valid and effective termination of this Agreement is terminated by Company pursuant to Section 9.01(c)(ii10.1(d) or Section 9.01(d)(ii), then Seller Purchaser shall pay Purchaser to the Company a termination fee equal to Three Million U.S. Dollars ($2,300,000 3,000,000) plus the Expenses actually incurred by or on behalf of the Company or any of its Affiliates in connection with the authorization, preparation, negotiation, execution or performance of this Agreement or the Ancillary Documents or the Mergers or the other transactions contemplated hereby or thereby, including any related SEC filings, the Registration Statement and any PIPE Investment (such aggregate amount, the “Seller Purchaser Termination Fee”) not later than the day of such termination, ). Purchaser Termination Fee shall be paid by wire transfer of immediately available fundsfunds to an account designated in writing by the Company within five (5) Business Days after Purchaser delivers to Purchaser the amount of such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt the Parties expressly acknowledge and agree that, with respect to any termination of this Agreement in circumstances where Purchaser Termination Fee is payable, the payment of Purchaser Termination Fee shall, in light of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account difficulty of punitive accurately determining actual damages, of constitute liquidated damages with respect to any claim for damages or any other claim which the Company would otherwise be entitled to assert against Purchaser and its Subsidiaries against Seller or any of its SubsidiariesAffiliates or any of their respective assets, Affiliates, stockholders, or against any of their respective directors, officers, employees or agents shareholders with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to the Company, provided, that the foregoing shall not limit (x) Purchaser from Liability for any and all Losses suffered as a result of the Fraud Claim relating to events occurring prior to termination of this Agreement pursuant to Section 9.01(c)(iior (y) or Section 9.01(d)(ii). (c) Each the rights of the parties acknowledges that the agreements contained Company to seek specific performance or other injunctive relief in this Section 9.03 are an integral part lieu of the transactions contemplated by terminating this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant In the event that all of the conditions to Section 9.01(b) and at such time all conditions Buyer’s obligation to close the Contemplated Transactions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall ARTICLE XII have been satisfied or, except for those (A) conditions intended to that can only be satisfied at the Closing, shall be in which case such conditions are fully capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on subject only to the fifth Business Day following such termination either occurrence of the Closing and (xB) conditions for which the failure to require Purchaser to pay Seller, promptly following such election, be satisfied is the direct result of a termination fee material Willful Breach by Buyer of $2,300,000 its covenants set forth in this Agreement (the “Purchaser Termination FeeBuyer Preemptive Breach”), by wire transfer and Seller becomes entitled to terminate this Agreement under Section 16.01(d) solely as a result of immediately available funds Buyer’s failure to close the Contemplated Transactions or the Buyer Preemptive Breach, then Seller shall, within thirty (the “Purchaser Fee Election”30) or days of becoming so entitled irrevocably elect in a writing delivered to Buyer to either (yi) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be as the sole and exclusive remedyremedy of Seller against Buyer and thus terminate this Agreement in full, including on account or (ii) maintain its right to seek specific performance (and monetary damages arising out of punitive damages, Seller’s enforcement of this Agreement) against Buyer pursuant to Section 17.06. Upon the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result making of such termination. For the avoidance of doubtirrevocable election, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall only be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations remedy so selected and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In in no event shall Purchaser be required entitled to pay both the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this and recovery pursuant to Section 9.03(a)17.06. (b) If In the event that all of the conditions to Seller’s obligation to close the Contemplated Transactions set forth in ARTICLE XIII have been satisfied, except for (A) conditions that can only be satisfied at the Closing, in which case such conditions are fully capable of being satisfied, subject only to the occurrence of the Closing and (B) conditions for which the failure to be satisfied is the direct result of a material Willful Breach by Seller of its covenants set forth in this Agreement is terminated pursuant (“Seller Preemptive Breach”) and Buyer becomes entitled to terminate this Agreement under Section 9.01(c)(ii16.01(e) solely as a result of Seller’s failure to close the Contemplated Transactions or Section 9.01(d)(ii)the Seller Preemptive Breach, then Buyer shall, within thirty (30) days of becoming so entitled, irrevocably elect in a writing delivered to Seller shall pay Purchaser $2,300,000 to either (i) receive the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be as the sole and exclusive remedy, including on account remedy of punitive damages, of the Purchaser and its Subsidiaries Buyer against Seller and thus terminate this Agreement in full, or any (ii) maintain its right to seek specific performance (and monetary damages arising out of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination Buyer’s enforcement of this Agreement Agreement) against Seller pursuant to Section 9.01(c)(ii) or 17.06. Upon the making of such irrevocable election, Buyer shall only be entitled to the remedy so selected and shall in no event be entitled to both the Termination Fee and recovery pursuant to Section 9.01(d)(ii)17.06. (c) Each of the parties Parties hereto acknowledges that (i) the agreements agreement contained in this Section 9.03 are 16.02 is an integral part of the transactions contemplated by this Agreement, that (ii) the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are Termination Fee is not a penalty penalty, but rather constitute is liquidated damages damages, in a reasonable amount that will compensate Purchaser or Seller, as applicable, the Parties in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyby this Agreement, which amount would otherwise be impossible to calculate with precision, and that(iii) without the agreement contained in this Section 16.02, without these agreements, neither Purchaser nor Seller the Parties would not enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If this either the Company, on the one hand, or Parent and Merger Sub, on the other hand, exercises its right to terminate the Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b6.1(d), the non-terminating party shall, no later than the second business day after the date of termination, pay to the terminating party a fee of $3,000,000 (the "BREAKUP FEE") and to the account or accounts designated by the terminating party; provided, however, such Breakup Fee shall not be payable unless the terminating party, at the time of such time termination, has (i) satisfied all of the conditions precedent to the non-terminating party's obligations set forth in Section 8.01 Article V, (ii) complied with all of its agreements, obligations and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary covenants set forth in this Agreement, if Seller makes the Purchaser and (iii) is not in breach of any of its representations or warranties made pursuant to this Agreement. Such Breakup Fee Electionis intended to constitute liquidated damages, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the terminating party's sole and exclusive remedy, including on account of punitive damagesat law or in equity, of for the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any non-terminating party's breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled and/or failure to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)perform. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller The Breakup Fee shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of be paid in immediately available fundsfunds in accordance with Section 6.3(a). Notwithstanding anything to If not paid at such time, from the contrary date such Breakup Fee is due hereunder until paid in this Agreementfull, Purchaser’s receipt the amount of the Seller Termination Breakup Fee pursuant shall bear interest at the prime rate of The Chase Manhattan Bank in effect from time to time. Parent shall also pay, together with the preceding sentence shall be Breakup Fee and accrued interest, any costs of collection on the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this AgreementCompany. At any time prior to the Effective Time any party hereto may, that to the amounts extent legally allowed, (if anyi) payable pursuant to Section 9.03(aextend the time for the performance of any of the obligations or other acts of the other parties hereto, (ii) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, waive any inaccuracies in the circumstances representations and warranties made to such party contained herein or in which such termination fee is payable any document delivered pursuant hereto and (iii) waive compliance with any of the agreements or conditions for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and benefit of such party contained herein. Any agreement on the expectation part of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, a party hereto to any such extension or waiver shall be valid only if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, an instrument in writing signed on behalf of such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitparty.

Termination Fee. To compensate Sterling for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities by Sterling, the Company and Sterling agree as follows: (a) If Provided that neither Sterling nor Bancorporation shall be in material breach of its obligations under this Agreement (which breach has not been cured promptly following receipt of written notice thereof by the Company specifying in reasonable detail the basis of such alleged breach), the Company shall pay to Sterling the sum of $2,000,000 (the "Termination Fee"), plus reasonable out-of- pocket expenses, not in excess of $500,000 (including, without limitation, amounts paid or payable to banks and investment bankers, fees and expenses of counsel and printing expenses) (such expenses are hereinafter referred to as the "Expenses") incurred by Sterling or any of its Affiliates in connection with or arising out of the transactions contemplated by this Agreement, regardless of when those expenses are incurred, if this Agreement is terminated (i) by Seller the Company under the provisions of Section 10.01(e), (ii) by either Sterling or Purchaser pursuant the Company under the provisions of Section 10.01(f) due to Section 9.01(b) the failure of the Company's shareholders to approve and at such time all conditions set forth in Section 8.01 adopt this Agreement and Section 8.03 (other than Section 8.03(d)) shall have been satisfied orthe Merger, for those conditions intended to be satisfied if at the Closing, shall be capable time of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) failure to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee so approve and elect to pursue monetary damages available to Purchaser under the terms of adopt this Agreement (and the “Purchaser Damages Election”). Notwithstanding anything Merger there shall exist an Acquisition Proposal with respect to the contrary in Company and, within nine months of the termination of this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant Company enters into a definitive agreement with any third party with respect to any Acquisition Proposal with respect to the preceding sentence, such Purchaser Termination Fee shall be Company or (iii) by Sterling under the sole and exclusive remedy, including on account provisions of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breachSection 10.01(g). If Seller makes Sterling shall provide the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result Company with an itemization of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)Expenses. (b) If Any payment required by clauses (i) and (iii) of paragraph (a) of this Section 8.14 shall become payable within two Business Days after termination of this Agreement is terminated pursuant or, in the case of reimbursement to Section 9.01(c)(ii) or Section 9.01(d)(ii)Sterling of the Expenses, then Seller shall pay Purchaser $2,300,000 promptly after (the “Seller Termination Fee”) not but in no event later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything three Business Days following) delivery to the contrary in this Agreement, Purchaser’s receipt Company of the Seller itemization of Expenses. Any payment of the Termination Fee pursuant required by clause (ii) of paragraph (a) of this Section 8.14 shall become payable within two (2) Business Days of the Company's entry into the definitive agreement referred to the preceding sentence in clause (ii) provided, however, that any payment of Expenses required by such clause (ii) shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of payable upon the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)Agreement. (c) Each of the parties The Company acknowledges that the agreements contained in this Section 9.03 8.14 are an integral part of the transactions contemplated by in this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller Sterling would not enter into this Agreement. Accordingly; accordingly, if Purchaser the Company fails to promptly pay the Termination Fee or SellerExpenses when due, the Company shall in addition thereto pay to Sterling all costs and expenses (including fees and disbursements of counsel) incurred in collecting such Termination Fee or Expenses, as the case may be, fails to timely pay together with interest on the Seller amount of the Termination Fee or Purchaser Termination Fee, Expenses (or any unpaid portion thereof) from the date such payment was required to be made until the date such payment is received by Sterling at the prime rate as applicable, when due reported in accordance with this Section 9.03, and, The Wall Street Journal as in order effect from time to obtain time during such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitperiod.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (bi) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii6.l(e), then Seller the Company shall (provided that Purchaser is not then in material breach of its obligations under this Agreement) (A) pay to Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day promptly and in any event within two Business Days of such terminationtermination $175,000 in cash and (B) reimburse Purchaser promptly and in any event within seven Business Days of such termination for any of Purchaser's documented out-of-pocket expenses (including without limitation fees and expenses of outside professionals) incurred in connection with the transactions contemplated hereby up to an aggregate reimbursement amount pursuant to this clause (B) of $150,000, in each case, by wire transfer of immediately available fundsfunds to an account specified by Purchaser. Notwithstanding anything The rights of Purchaser to receive the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions payments contemplated by this Agreement, that the amounts (if anySection 6.2(b)(i) payable pursuant to Section 9.03(a) shall be in lieu of any damages remedy or Section 9.03(b) are not a penalty but rather constitute liquidated damages other claim by Purchaser in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation respect of the transactions contemplated hereby. (ii) If this Agreement is terminated pursuant to Section 6.l(c) or Section 6.1(d), and that, without these agreements, neither then Purchaser nor Seller would enter into shall (provided that the Company is not then in material breach of its obligations under this Agreement. Accordingly, if Purchaser or Seller, as ) (A) pay to the case may be, fails to timely pay Company promptly and in any event within two Business Days of such termination $175,000 in cash and (B) reimburse the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due Company promptly and in accordance with this Section 9.03, and, in order to obtain any event within seven Business Days of such payment, Purchaser or Seller, as termination for any of the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and Company's documented costs and out-of-pocket expenses (including reasonable and documented attorneys’ without limitation fees and expensesexpenses of outside professionals) incurred in connection with such suitthe transactions contemplated hereby up to an aggregate reimbursement amount pursuant to this clause (B) of $150,000, in each case, by wire transfer of immediately available funds to an account specified by the Company. The rights of the Company to receive the payments contemplated by this Section 6.2(b)(ii) shall be in lieu of any damages remedy or other claim by the Company in respect of the transactions contemplated hereby.

Termination Fee. (a) If this Agreement is terminated, or if terminated by Seller or Purchaser pursuant to another provision, was capable of being terminated (i) pursuant to Section 9.01(b10.1(d) based upon a Court Order enjoining the consummation of the Rocketdyne Transactions under applicable Antitrust Laws, (ii) pursuant to Section 10.1(c) on the basis that the Buyer has breached (and not cured) its obligations under Section 5.2, (iii) pursuant to Section 10.1(e) where the Buyer has breached its obligations under Section 5.2; provided, that solely for purposes of this Section 10.4(a)(iii), the Buyer shall not be deemed to have breached its obligations under Section 5.2(e)(ii) if it used reasonable best efforts to comply therewith, or (iv) pursuant to Section 10.1(f) and at the time of such time all termination the conditions set forth in Section 8.01 either Sections 7.2 and Section 8.03 (other than Section 8.03(d)) shall 8.2 or Sections 7.4 and 8.5 have not been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfiedmet, then the Buyer shall pay the Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on an amount totaling twenty million dollars ($20,000,000) (the fifth “Termination Fee”) promptly (and in any event within two (2) Business Day Days) following such termination either of this Agreement. (xb) to require Purchaser to pay The Parties acknowledge and agree that the Termination Fee has been agreed upon, after negotiation, as the Parties’ reasonable estimate of Seller, promptly following such election, ’s damages that would be caused by a termination fee of $2,300,000 (the “Purchaser Termination Fee”of, or failure to close under, this Agreement as described in Section 10.4(a), by wire transfer and that an award of immediately available funds (such liquidated damages in the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive amount of the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole Seller’s exclusive remedy against Buyer and exclusive remedy, including on account of punitive damages, its Affiliates (and any Financing Sources of the Buyer) for any Losses incurred by Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered Affiliates as a result of such terminationtermination or failure to close. For the avoidance of doubtIn addition, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required Buyer fails promptly to pay the Purchaser Termination Fee if amount due to the Seller has not delivered the Purchaser Fee Election in accordance with pursuant to this Section 9.03(a10.4, it shall also pay (i) interest thereon at the prime rate as published in The Wall Street Journal plus five percent (5%). , plus (bii) If any costs and expenses incurred by the Seller in connection with a legal action to enforce this Agreement is terminated pursuant to Section 9.01(c)(ii) that results in a judgment against or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (settlement with the “Seller Termination Fee”) not later than the day of Buyer for such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)amount. (c) Each of the parties acknowledges The Parties acknowledge that the agreements contained in this Section 9.03 10.4 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyRocketdyne Transactions, and that, without these agreements, neither Purchaser nor Seller the Parties would not enter into this Agreement. AccordinglyIn light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, if Purchaser or Seller, as the case may be, fails to timely pay Parties acknowledge that the Seller Termination Fee or Purchaser Termination Fee, as applicablein the circumstances in which it becomes payable, when due in accordance with constitute a reasonable estimate of the Losses that will be suffered by reason of any termination of this Agreement where the Termination Fee is payable and constitutes liquidated damages and is not a penalty; provided, however, that the Termination Fee shall be reduced by an amount equal to the sum of: (i) the aggregate amount of the Seller’s expenses that are reimbursed by the Buyer under Section 9.03, 5.2; and, in order to obtain such payment, Purchaser or Seller, as (ii) the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs fees and expenses (including reasonable and documented attorneys’ fees and expenses) of the Buyer that are incurred in connection with such suitlitigating with a Governmental Authority following the filing by that Governmental Authority of a complaint, which is not filed contemporaneously with a proposed final judgment proposing the resolution of the matter, seeking to restrain or enjoin the carrying out of this Agreement or the consummation of the transactions contemplated by this Agreement.

Termination Fee. If (a) If Buyer terminates this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b10.1(e) or (b) Sellers terminate this Agreement pursuant to Section 10.1(c)(i) or (ii), in either case of subsection (a) or (b) of this Section 10.3 on or before 45 days after the date of this Agreement, Buyer will pay Sellers an aggregate amount of $6,500,000. If (x) Buyer terminates this Agreement pursuant to Section 10.1(e) or (y) Sellers terminate this Agreement pursuant to Section 10.1(c)(i) or (ii), in either case of subsection (x) or (y) of this Section 10.3, after 45 days after the date of this Agreement, or (z) if Sellers terminate this Agreement pursuant to Section 10.1(c)(iii) on or after August 24, 2009, Buyer will pay Sellers an aggregate amount of $9,500,000. The sole and at such time exclusive remedy of Sellers and the Companies with respect to Buyer’s termination of this Agreement pursuant to Section 10.1(e) is to receive payment under this Section 10.3. The sole and exclusive remedy of Sellers and the Companies with respect to any breach by Buyer of its material obligations under this Agreement, the failure of any of the representations and warranties of Buyer contained in this Agreement to be true and correct in all material respects or Buyer fails to consummate the transactions contemplated by this Agreement even though all of the conditions to Buyer’s obligation to Close as set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall 9.2 have been satisfied or, for those conditions intended or waived is to terminate this Agreement pursuant to Section 10.1(c) and to receive the payment under this Section 10.3. Any payment under this Section 10.3 will be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (allocated in the “Purchaser Fee Election”manner as Sellers instruct) or (y) to irrevocably waive Seller’s immediately upon Sellers’ demand and without any right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”)setoff. Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, Upon payment of the Seller applicable amount, Buyer will be fully released and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for discharged from any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled resulting from its failure to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of close the transactions contemplated by this Agreement, that the amounts (if any) payable Agreement and for any breach or failure giving rise to Sellers’ termination pursuant to Section 9.03(a10.1(c). Sellers and Buyer agree that: (i) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts agreement set forth in this Section 9.0310.3 is an integral part of this Agreement, such paying party shall pay (ii) the other party its amount of the fee provided in this Section 10.3 is reasonable and documented costs appropriate in all respects, and expenses (including reasonable iii) Sellers and documented attorneys’ fees and expenses) Buyer would not enter into this Agreement without the agreement contained in connection with such suitthis Section 10.3.

Termination Fee. (a) If In the event that this Agreement letter is terminated by Seller or Purchaser pursuant to Section 9.01(b5(a)(iii) (in the case such breaching Party is Seller) or Section 5(a)(iv) (in the case such breaching Party is Buyer) because a Party fails to execute and at such deliver the Purchase Agreement within the time all conditions set forth period specified in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable 2 in material breach of being satisfiedsuch Party’s obligations under this letter, then Seller the breaching Party shall irrevocably elect no later than 5:00 p.m. Eastern Time on pay to the fifth Business Day following such termination either (x) other Party an amount in the aggregate equal to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 6,000,000 (the “Purchaser Termination Fee”), which shall be payable by wire transfer of immediately available funds within three (3) Business Days following receipt of written payment instructions from the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such terminationother Party. For the avoidance of doubt, if Seller makes the Purchaser Fee Election amount described in this Section 5(d) shall not be payable by either Party, and Purchaser pays the Purchaser Termination Fee, Purchaser neither Party shall have no other liability for any otherwise be deemed to be in breach of its obligations under this Agreement (regardless letter, in the event of a Party’s failure to implement any recommendation made by any Staff Representative Body in any Final Opinion. Subject to the rights of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled Parties to pursue monetary damages for only those Losses incurred seek specific performance or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election equitable relief in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii7(m), then Seller shall pay Purchaser $2,300,000 (a Party’s right to receive the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence this Section 5(d) shall be the its sole and exclusive remedyremedy under the circumstances where the Termination Fee is payable under this letter, and such Party (on its own behalf and on behalf of its affiliates) shall be deemed to have waived all other remedies (including on account of punitive damagesequitable remedies) with respect to, (i) any failure of the Purchaser transactions contemplated by this letter to be consummated and (ii) any other breach by any other Party of its Subsidiaries against Seller obligations under this letter. Upon payment by a Party of the Termination Fee pursuant to this Section 5(d) under the circumstances where the Termination Fee is payable under this letter, neither such Party nor any of its affiliates shall have any further liability or obligation (under this letter, the Purchase Agreement or otherwise) relating to or arising out of this letter, the Purchase Agreement or any of its Subsidiariesthe transactions contemplated hereby or thereby, Affiliatesand in no event shall any Party (and such Party shall ensure such Party’s controlled affiliates do not) seek to recover any money damages or losses, stockholdersor seek to pursue any other recovery, directorsjudgment, officersdamages or remedy (including any equitable remedy) of any kind, employees in connection with this letter, the Purchase Agreement or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) transactions contemplated hereby or Section 9.01(d)(ii). (c) Each of thereby. The Parties agree that the parties acknowledges that Termination Fee and the agreements contained in this Section 9.03 5(d) are an integral part of the transactions contemplated by this Agreement, letter and the Purchase Agreement and that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are Termination Fee constitutes liquidated damages and not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitpenalty.

Termination Fee. To compensate Bancshares for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities by Bancshares, First United and Bancshares agree as follows: (a) If Provided that Bancshares shall not be in material breach of any covenant or obligation under this Agreement (which breach, if susceptible to cure, has not been cured promptly following receipt of written notice thereof by First United specifying in reasonable detail the basis of such alleged breach), First United shall pay to Bancshares the sum of $1,875,000 (the “Termination Fee”) if this Agreement is terminated (i) by Seller First United under the provisions of Section 9.1(f), (ii) by either Bancshares or Purchaser pursuant First United under the provisions of Section 9.1(d) due to Section 9.01(b) the failure of the First United shareholders to approve and at such time all conditions set forth in Section 8.01 adopt this Agreement and Section 8.03 (other than Section 8.03(d)) shall have been satisfied orthe Merger, for those conditions intended to be satisfied if at the Closing, shall be capable time of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on any failure by the fifth Business Day following such termination either (x) shareholders of First United to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee approve and elect to pursue monetary damages available to Purchaser under the terms of adopt this Agreement (and the “Purchaser Damages Election”). Notwithstanding anything Merger there shall exist an Acquisition Proposal with respect to First United and, within twelve months of the contrary in termination of this Agreement, if Seller makes First United enters into a definitive agreement with any third party with respect to any such Acquisition Proposal or (iii) by Bancshares under the Purchaser Fee Election, and Purchaser pays provisions of Section 9.1(g). The payment of the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the Bancshares’ sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach remedy with respect to termination of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election as set forth in accordance with this Section 9.03(a9.3(a). (b) If Any payment required by paragraph (a) of this Agreement Section 9.3 shall become payable within two (2) business days after receipt by the non-terminating party of written notice of termination of this Agreement; provided, however, that if such termination payment is terminated required pursuant to clause (ii) of Section 9.01(c)(ii) or Section 9.01(d)(ii9.3(a), then Seller such termination payment shall pay Purchaser $2,300,000 become payable within two (2) business days after the “Seller Termination Fee”) not later than the day execution and delivery by First United of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)definitive agreement. (c) Each For purposes of this Agreement, “Acquisition Proposal” means a written offer or proposal which contains a fixed price per share or a mathematically ascertainable formula for calculating a price per share for First United Common Stock regarding any of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of following (other than the transactions contemplated by this Agreement) involving First United: (i) any merger, that reorganization, consolidation, share exchange, recapitalization, business combination, liquidation, dissolution or other similar transaction involving any sale, lease, exchange, mortgage, pledge, transfer or other disposition of, all or substantially all of the amounts (if any) payable pursuant to Section 9.03(a) assets or Section 9.03(b) are not a penalty but rather constitute liquidated damages equity securities or deposits of First United in a reasonable amount that will compensate Purchaser single transaction or Sellerseries of related transactions which could reasonably be expected to impede, as applicableinterfere with, in prevent or materially delay the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation completion of the consummation Merger; (ii) any tender offer or exchange offer for all or substantially all of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser outstanding shares of capital stock of First United or Seller, as the case may be, fails to timely pay filing of a registration statement under the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) Securities Act in connection with such suittherewith; or (iii) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.

Termination Fee. (a) If In the event that this Agreement is validly terminated (i) by Seller in accordance with Section 4.2(e) or Section 4.2(f) or (ii) by Purchaser pursuant in accordance with Section 4.2(a) at a time when Seller had the right to validly terminate this Agreement under Section 9.01(b4.2(e) and at such time all conditions set forth in or Section 8.01 and Section 8.03 (other than Section 8.03(d4.2(f)) , then, Purchaser shall have been satisfied or, for those conditions intended pay or cause to be satisfied at the Closingpaid to Seller Parent, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth within five (5) Business Day Days following such termination either termination, an amount in cash equal to $11,700,000.00 (xEleven Million Seven Hundred Thousand Dollars) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), ) by wire transfer of immediately available funds to an account designated in writing by Seller Parent. (the “Purchaser Fee Election”b) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if in the event that the Termination Fee is payable in accordance with the terms of this Agreement, (i) Seller makes Parent’s right to receive the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to Section 4.4(a) and the preceding sentence, such Purchaser Termination Fee Enforcement Costs pursuant to this Section 4.4(b) shall be the sole and exclusive remedy, including on account of punitive damages, remedy of the Seller and its Subsidiaries any other Person against Purchaser or Purchaser, the Debt Financing Sources, the Sponsor, their Affiliates and their respective Representatives (and, without limiting Section 10.10, no such Person shall have any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents other Liability for any and or all Losses suffered as a result or incurred by Seller or any other Person) relating to or arising out of this Agreement and the transactions contemplated hereby, including any failure of the Closing to be consummated, and (ii) upon payment of Termination Fee (and the Enforcement Costs, if any), no such terminationPerson shall have any further Liability relating to or arising out of this Agreement or the transactions contemplated hereby, including the Limited Guarantee. For the avoidance of doubt, if under no circumstances shall Seller makes be permitted or entitled to receive both a grant of specific performance and any money damage, including all or any portion of the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required fails to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to Section 4.4(a), and, in order to obtain such payment, Seller Parent commences a Legal Proceeding that results in a final, nonappealable judgment against Purchaser for the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, payment of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement Termination Fee pursuant to Section 9.01(c)(ii4.4(a), Purchaser shall pay, or cause to be paid, in addition to the Termination Fee, to Seller Parent, Seller Parent’s reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) or Section 9.01(d)(iiincurred by Seller Parent in connection with such Legal Proceeding (the “Enforcement Costs”). (c) Each of the parties acknowledges The Parties acknowledge and agree that the agreements contained in this Section 9.03 4.4 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Parties would not otherwise enter into this Agreement. The Parties acknowledge and agree that (i) under no circumstances will the amounts Seller or any of its Affiliates, indirectly and collectively, seek to recover, or be entitled to recover, any money damages or other Losses of any kind, character or description in excess of the Termination Fee (and the Enforcement Costs, if any), (ii) payable pursuant in no event shall Purchaser be required to pay the Termination Fee on more than one occasion and (iii) any payment of the Termination Fee, as applicable, described in this Section 9.03(a) or Section 9.03(b) are 4.4 is not a penalty but rather constitute is liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, the Seller in the circumstances in which such termination fee is fees are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into by this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails which amount would otherwise be impossible to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance calculate with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitprecision.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or Upon any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii7.1(h), (j) or (l) or upon the failure of any of the Company Significant Shareholders to vote in favor of the Merger at a duly held meeting of the Company's shareholders or at any adjournment or postponement thereof and, in connection with such vote, the Merger is not approved by the shareholders of the 67 72 Company, the Company, upon written notice from Parent at any time of Parent's election to receive a termination fee equal to $15 million (the "COMPANY TERMINATION FEE") in lieu of Parent exercising the Company Stock Option (the "COMPANY TERMINATION FEE NOTICE"), shall immediately pay to Parent the Company Termination Fee. Following any termination of this Agreement pursuant to Section 9.01(d)(ii7.1(h), (j) or (l), the Company shall give Parent at least 30 days' (and not more than 45 days') prior written notice of the closing date of any Company Takeover Proposal, and Parent, if it elects to receive the Company Termination Fee upon such closing, shall give written notice to the Company (the "COMPANY PAYMENT NOTICE") at least five days' prior to such closing (which notice shall be effective only upon such closing), and the Company shall pay the Company Termination Fee upon such closing. If Parent has not delivered the Company Payment Notice within such time frame, then upon (and only upon) the closing of the Company Takeover Proposal, Parent's right to receive the Company Termination Fee shall terminate. (b) Upon any termination of this Agreement pursuant to Section 7.1(i), (k) or (m) or upon the failure of the Parent Significant Shareholder to vote in favor of the Merger at a duly held meeting of Parent's shareholders or at any adjournment or postponement thereof and, in connection with such vote, the Merger is not approved by the shareholders of Parent, Parent, upon written notice from the Company at any time of the Company's election to receive a termination fee equal to $15 million (the "PARENT TERMINATION FEE") in lieu of the Company exercising the Parent Stock Option (the "PARENT TERMINATION FEE NOTICE"), shall immediately pay to the Company the Parent Termination Fee. Following any termination of this Agreement pursuant to Section 7.1(i), (k) or (m), Parent shall give the Company at least 30 days' (and not more than 45 days') prior written notice of the closing date of any Parent Takeover Proposal, and the Company, if it elects to receive the Parent Termination Fee upon such closing, shall give written notice to Parent (the "PARENT PAYMENT NOTICE") at least five days' prior to such closing (which notice shall be effective only upon such closing), and Parent shall pay the Parent Termination Fee upon such closing. If the Company has not delivered the Parent Payment Notice within such time frame, then upon (and only upon) the closing of the Parent Takeover Proposal, the Company's right to receive the Parent Termination Fee shall terminate. (c) Each Payment of the parties acknowledges that fees described in Sections 7.5(a) and (b) above shall not be in lieu of damages incurred in the agreements contained in this Section 9.03 are an integral part event of the transactions contemplated by breach of this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. To compensate CBC for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities by CBC, Cadence and CBC agree as follows: (a) If if this Agreement is terminated by Seller or Purchaser Cadence pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”8.1(e) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated CBC pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii8.1(f), then Seller immediately prior to such termination, Cadence shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such terminationto CBC, by wire transfer of immediately available funds. Notwithstanding anything to , the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee and the Expense Reimbursement. (b) if this Agreement is terminated by either party pursuant to Section 8.1(g) and prior to such termination any person shall have proposed or publicly announced an Acquisition Proposal, then in the preceding sentence case of any such termination, Cadence shall be on such termination pay CBC, by wire transfer of immediately available funds, the sole Expense Reimbursement and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result if an Acquisition Proposal (i) is signed within twelve months of the termination of this Agreement pursuant to Section 9.01(c)(ii8.1(g) and is thereafter consummated or (ii) is consummated within twelve months of the termination of this Agreement pursuant to Section 9.01(d)(ii8.1(g), then in either case Cadence shall on the consummation of such transaction pay to CBC, by wire transfer of immediately available funds, the Termination Fee. (c) Each The payment of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part Termination Fee and Expense Reimbursement shall be CBC’s sole and exclusive remedy with respect to termination of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.038.3(a) and Section 8.3(b). (d) For purposes of this Agreement, such paying party the Expense Reimbursement shall pay mean the other party its amount of CBC’s actual, reasonable and documented costs and out-of-pocket expenses (including reasonable and documented attorneys’ fees and expenses) incurred in connection with such suitdue diligence, the negotiation and preparation of this Agreement and undertaking of the transactions contemplated pursuant to this Agreement (including all Taxes, filing fees, fees and expenses of attorneys, consultants and accounting and financial advisers incurred by or on behalf of CBC in connection with the transactions contemplated pursuant to this Agreement) less any expenses previously paid by Cadence or expense allowances provided by Cadence to CBC or Contractors on CBC’s behalf; provided in no event shall the Expense Reimbursement exceed $1,000,000. (e) For purposes of this Agreement, the Termination Fee shall mean: (i) $2,500,000 if this Agreement is terminated on or after the date hereof and on or before the date that is 10 days from the date hereof; (ii) $3,500,000 if this Agreement is terminated after the date that is 10 days from the date hereof and on or before the date that is 30 days from the date hereof; (iii) $4,5000,000 if this Agreement is terminated after the date that is 30 days from the date hereof;

Termination Fee. (a) If If: (i) Bema terminates this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(bin accordance with subsection 7.2(a) and at such time all conditions set forth in Section 8.01 and Section 8.03 hereof; or (other than Section 8.03(d)ii) an Acquisition Proposal (a “Pending Bema Acquisition Proposal”) shall have been satisfied orpublicly announced and such Pending Bema Acquisition Proposal shall not have been publicly withdrawn prior to the Bema Meeting, for those conditions intended to be satisfied at if any, and, thereafter the ClosingBema Required Vote shall not have been obtained (including if the Bema Meeting is not held) and Bema completes such Pending Bema Acquisition Proposal within 12 months following the Completion Deadline, shall be capable of (any such event being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination FeeTriggering Event”), by wire transfer of then Bema shall pay Kinross an amount in cash equal to $79 million in immediately available funds to an account designated by Kinross. Such payment shall be made (a) in the “Purchaser Fee Election”case of a Triggering Event described in subsection 7.3(a)(i), concurrently with such termination (and shall be a condition to the effectiveness of such termination by Bema), and (b) or (y) in the case of a Triggering Event described in subsection 7.3(a)(ii), concurrently with completion of the Pending Bema Acquisition Proposal. The obligation to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms make any payment required by this paragraph shall survive any termination of this Agreement (Agreement. Bema hereby acknowledges that the “Purchaser Damages Election”). Notwithstanding anything to the contrary payment amount set out in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account subsection is a payment of punitive damages, liquidated damages which is a pre-estimate of the Seller and its Subsidiaries against Purchaser damages which Kinross will suffer or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered incur as a result of the event giving rise to such terminationdamages and the resultant non-completion of the Arrangement and the transactions contemplated herein and is not a penalty. For the avoidance Bema hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt of doubtpayment of such amount by Kinross, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser Kinross shall have no other liability for any breach of this Agreement (regardless further claim against Bema in respect of the time of breach). If Seller makes failure to complete the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)transactions contemplated herein. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller Bema shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such terminationto Kinross, by wire transfer of or cause to be paid to Kinross, in immediately available funds. Notwithstanding anything funds to an account designated by Kinross, the contrary in this Agreement, Purchaser’s receipt reasonable documented expenses of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser Kinross and its Subsidiaries against Seller or any of its Subsidiariesaffiliates incurred in connection with the transactions contemplated hereby not to exceed $7.5 million, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of in the termination of event that Kinross shall have terminated this Agreement pursuant to Section 9.01(c)(iisubsection 8.1(b) or Section 9.01(d)(ii)hereof. Such payment shall be in addition to, and not in substitution of, any other rights which Kinross may have in respect of any breach by Bema of its covenants hereunder. (c) Each Kinross shall pay to Bema, or cause to be paid to Bema, in immediately available funds to an account designated by Bema, the reasonable documented expenses of the parties acknowledges that the agreements contained Bema and its affiliates incurred in this Section 9.03 are an integral part of connection with the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant hereby not to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicableexceed $7.5 million, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating event that Bema shall have terminated this Agreement and pursuant to subsection 8.1(c) hereof. Such payment shall be in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyaddition to, and thatnot in substitution of, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case any other rights which Bema may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due have in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party respect of any breach by Kinross of its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitcovenants hereunder.

Termination Fee. To compensate BankUnited for entering into this Agreement, taking action to consummate the transactions hereunder and incurring the costs and expenses related thereto and other losses and expenses, including the foregoing by BankUnited of other opportunities, Consumers and BankUnited agree as follows: (ai) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth Provided that BankUnited shall not be in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable material breach of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser its obligations under the terms of this Agreement (which breach has not been cured promptly following receipt of written notice thereof by Consumers specifying in reasonable detail the “Purchaser Damages Election”basis of such alleged breach). Notwithstanding anything , Consumers shall pay to BankUnited the contrary sum of $325,000 (the "Termination Fee") plus reasonable out-of-pocket expenses, not in this Agreementexcess of $25,000 (including, if Seller makes without limitation, amounts paid or payable to banks and investment bankers, fees and expenses of counsel, filing fees and printing expenses) (such expenses are hereinafter referred to as the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser "Expenses") incurred by BankUnited or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees affiliates in connection with or agents for any and all Losses suffered as a result arising out of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, regardless of when those expenses are incurred, if this Agreement is terminated (x) by Consumers: under the provisions of Section 10.01(f) or as a result of Section 9.02(c), or (y) by BankUnited under the provisions of 10.01(c), if an Acquisition Event shall occur after the date hereof and prior to the date that is 9 months after the amounts date of such termination and as a result of such Acquisition Event Consumers stockholders shall receive payment in the aggregate that is valued at more than $11 million (the "Acquisition Price"); provided, however, that if anythe Acquisition Price is between $11 million and $11,325,000, the Termination Fee shall be limited to the excess over $11 million. "Acquisition Event" shall mean any of the following: (i) payable any person or group (as defined in Section 13(d)(3) of the Exchange Act), other than BankUnited, shall have acquired, pursuant to Section 9.03(aa tender offer, exchange offer or otherwise, beneficial ownership (including pursuant to the acquisition of options) of 25% or Section 9.03(bmore of any class of equity securities of Consumers; (ii) are not any such person or group shall have received approval from the OTS to acquire ownership of 25% or more of any class of equity securities of Consumers; or (iii) Consumers shall have authorized, recommended, proposed or publicly announced an intention to authorize, recommend or propose, or shall have entered into, an agreement with any person (other than BankUnited) to (w) effect a penalty but rather constitute liquidated damages in merger, consolidation, business combination, sale of substantially all assets, or similar transaction involving Consumers, (x) sell, lease or otherwise dispose of assets of Consumers representing 25% or more of the consolidated assets of Consumers, (y) issue, sell or otherwise dispose of other than by means of a reasonable amount that will compensate Purchaser widely disbursed public offering (including by way of merger, consolidation, share exchange, or Seller, as applicable, any similar transaction) securities representing 25% or more of any class of equity securities of Consumers in the circumstances aggregate, or (z) have such person effect a tender offer or exchange offer that if consummated would result in which such termination fee is payable for any person beneficially owning 25% or more of any class of equity securities of Consumers in the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitaggregate.

Termination Fee. (a) If The Parties agree that, if the Company validly terminates this Agreement is terminated by Seller or Purchaser pursuant to (i) Section 9.01(b8.1(c), (ii) Section 8.1(e) and at such time in the case of this clause (ii), (A) all of the conditions set forth in precedent to Buyer’s obligations to consummate the Closing under Section 8.01 and Section 8.03 7.1 have been satisfied (other than Section 8.03(d)) shall have been satisfied or, for those any such conditions intended which by their nature are to be satisfied at on the Closing, shall Closing Date or which have not been satisfied due to Buyer’s breach of its obligations under this Agreement) and continue to be satisfied (or capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time ) on the fifth date the Closing is required to be consummated by Buyer pursuant to the terms of this Agreement, (B) the Sellers irrevocably certify to Buyer in writing that they are ready, willing and able to consummate the Closing on the End Date and (C) Buyer fails to consummate the Closing within two (2) Business Day Days following receipt of such termination either written confirmation, or (xiii) to require Purchaser to Section 8.1(f), Buyer shall pay Seller, promptly following such election, each Seller its Pro Rata Share of a termination fee of equal to $2,300,000 51,600,000.00 (the “Purchaser Buyer Termination Fee”), ) by wire transfer of immediately available funds as promptly as reasonably practicable (and in any event, within five (5) Business Days of such termination), it being understood that (x) in no event shall Buyer be required to pay the “Purchaser Buyer Termination Fee Election”) or on more than one occasion, (y) in no event shall Sellers and the Company be entitled to irrevocably waive Sellerboth an award of specific performance of Buyer’s right obligations to receive consummate the Purchaser Closing under Section 10.10 and monetary damages in connection with this Agreement or any termination of this Agreement, including the Buyer Termination Fee, and (z) the parties agree that the Buyer Termination Fee and elect is not a penalty, Buyer will not assert any argument to pursue monetary damages available the effect that payment of the Buyer Termination Fee is contrary to Purchaser public policy or that there are equitable reasons why it should not be paid under the terms of any circumstance requiring its payment under this Agreement section 8.2(a). (the “Purchaser Damages Election”). b) Notwithstanding anything to the contrary in this Agreement, if Seller makes in the Purchaser Fee Electionevent Buyer fails to effect the Closing or otherwise breaches this Agreement or fails to perform hereunder, then, except for an order of specific performance as and Purchaser pays the Purchaser Termination Fee pursuant only to the preceding sentenceextent expressly permitted by Section 10.10, such Purchaser Termination Fee shall be Sellers’ and the Company’s sole and exclusive remedyremedy (whether at law, including on account of punitive damagesin equity, of the Seller in contract, in tort or otherwise) against Buyer, Sponsor, any Committed Financing Party, and its Subsidiaries against Purchaser or any of its Subsidiariestheir respective former, Affiliatescurrent or future Affiliates or representatives in respect of this Agreement, stockholders, directors, officers, employees any contract or agents for any agreement executed in connection herewith (including the Debt Commitment Letters) and all Losses suffered as a result of such termination. For the avoidance of doubttransactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VIII and collect, if Seller makes due, the Purchaser Fee Election and Purchaser pays the Purchaser Buyer Termination Fee, Purchaser shall have no other liability for any breach and upon payment of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election such amounts in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)8.2, then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day except in connection with an order of such termination, by wire transfer of immediately available funds. Notwithstanding anything specific performance as and only to the contrary in extent expressly permitted by Section 10.10, (A) none of Buyer, Sponsor, the Committed Financing Parties, or any of their respective former, current or future Affiliates or representatives shall have any further liability or obligation relating to or arising out of this Agreement, Purchaser’s receipt of any Contract executed in connection herewith (including the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller Debt Commitment Letters) or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by hereby or thereby, (B) none of Sellers, the Company, the Subsidiaries of the Company or any of their respective former, current or future Affiliates or representatives shall be entitled to bring or maintain any action or proceeding against Buyer, Sponsor, the Committed Financing Parties, or any of their respective former, current or future Affiliates or representatives arising out of or in connection with this Agreement, that any Contract executed in connection herewith (including the amounts (if any) payable pursuant to Section 9.03(aDebt Commitment Letters) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation any of the transactions contemplated herebyhereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as (C) Sellers and the case may be, fails Company shall use their commercially reasonable efforts to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) cause any Litigation pending in connection with this Agreement, any Contract executed in connection herewith (including the Debt Commitment Letters) or any of the transactions contemplated hereby or thereby, to be dismissed with prejudice promptly following the payment of any such suitamounts.

Termination Fee. (a) If In consideration of Buyer's entering into this Agreement, and in recognition of the benefits that it provides Seller in seeking to sell the Business for the highest and best offer at the Auction, Seller agrees (in addition to all other rights and remedies as Buyer may have hereunder) to pay Buyer up to $350,000 of Buyer's reasonable out-of-pocket costs and expenses incurred in connection with the transactions contemplated by this Agreement (the "Reimbursed Expenses") plus $650,000 (the "Breakup Fee" and, together with the Reimbursed Expenses, the "Termination Fee"), in each case, under the circumstances described below: (i) Seller shall pay Buyer the Termination Fee if (A) Seller selects a Person other than Buyer as the Successful Bidder (the "Successful Bidder") pursuant to the Sale Procedures Order (an "Alternate Transaction"); or (B) within 12 months after the termination of this Agreement (other than a termination pursuant to Section 11.1(a) or 11.1(g)), Seller sells or otherwise transfers all or any substantial portion of the Business to any Person other than Buyer or confirms a stand-alone plan of reorganization providing for the continued operation of all or any substantial portion of the Business; or (ii) Except as provided in Section 8.7(a)(i), Seller shall pay Buyer the Reimbursed Expenses if this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b11.1(f). (b) and at Seller shall pay the Termination Fee as follows: (i) in the case of Section 8.7(a)(i)(A), as provided in the Sale Procedures Order; (ii) in the case of Section 8.7(a)(i)(B), in respect of the Breakup Fee, immediately prior to such time all conditions set forth sale or transfer or within two business days after such confirmation and, in respect of the Reimbursed Expenses, within two business days after the termination of this Agreement. (c) Except as provided in Section 8.01 and 8.7(b), Seller shall pay Buyer the Reimbursed Expenses within two business days after the termination described in Section 8.03 8.7(a)(ii). (other than Section 8.03(d)d) shall have been satisfied orExcept as provided in the Sale Procedures Order, for those conditions intended to be satisfied at any payment by Seller of all or a portion of the Closing, Termination Fee shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary an account specified in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered writing by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)Buyer. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. To compensate either party for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities by Sterling or the Bank, the Bank and Sterling agree as follows: (a) If Provided that Sterling is not in material breach of its obligations under this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) (and at that such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have breach has not been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, cured promptly following receipt of written notice thereof by the Bank specifying in reasonable detail the basis of such electionalleged breach), a termination fee the Bank shall pay to Sterling the sum of $2,300,000 2,500,000 (the “Purchaser Termination Fee”), by wire transfer plus reasonable out-of-pocket expenses, including, without limitation, amounts paid or payable to banks and investment bankers, fees and expenses of immediately available funds counsel, accounting fees and expenses, and printing expenses, but not in excess of $50,000 (such expenses are hereinafter referred to as the “Purchaser Fee ElectionExpenses”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser incurred by Sterling or any of its SubsidiariesAffiliates in connection with or arising out of the transactions contemplated by this Agreement, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result regardless of such termination. For the avoidance of doubtwhen those expenses are incurred, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement is terminated (regardless i) by the Bank under the provisions of Section 10.1(e), (ii) by either Sterling or the Bank under the provisions of Section 10.1(f) due to the failure of the Bank’s shareholders to approve and adopt this Agreement and the Merger, if at the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled such failure to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations so approve and warranties or covenants under adopt this Agreement and the Merger there exists an Acquisition Proposal with respect to the Bank and, within nine months of the termination of this Agreement, the Bank enters into a definitive agreement with any third party with respect to any Acquisition Proposal with respect to the Bank, or (other than iii) by Sterling under the provisions of Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a10.1(g). (b) If Any payment required by clauses (i) and (iii) of paragraph (a) of this Section 8.14 shall become payable within two Business Days after termination of this Agreement is terminated pursuant or, in the case of reimbursement to Section 9.01(c)(ii) or Section 9.01(d)(ii)Sterling of the Expenses, then Seller shall pay Purchaser $2,300,000 promptly after (the “Seller Termination Fee”) not but in no event later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything three Business Days following) Sterling’s delivery to the contrary in this Agreement, Purchaser’s receipt Bank of an itemization of Expenses. Any payment of the Seller Termination Fee pursuant required by clause (ii) of paragraph (a) of this Section 8.14 shall become payable within two Business Days of the Bank’s entry into the definitive agreement referred to the preceding sentence in clause (ii); provided, however, that any payment of Expenses contemplated by such clause (ii) shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of payable upon the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)Agreement. (c) Each Provided that the Bank is not in material breach of its obligations under this Agreement (and that such breach has not been cured promptly following receipt of written notice thereof by Sterling specifying in reasonable detail the basis of such alleged breach), Sterling shall pay to the Bank the Termination Fee, plus Expenses not in excess of $50,000.00 incurred by the Bank in connection with or arising out of the parties transactions contemplated by this Agreement, regardless of when those Expenses are incurred, if this Agreement is terminated by Sterling except as specifically provided in Section 10.1 hereof. Any such fee shall be payable within two Business Days after termination of this Agreement, but in the case of reimbursement of Expenses shall be payable within three Business Days following the Bank’s delivery to Sterling of an itemization of such Expenses. (d) The Bank acknowledges that the agreements contained in this Section 9.03 8.14 are an integral part of the transactions contemplated by in this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller the parties would not enter into this Agreement. Accordingly; accordingly, if Purchaser a party fails to promptly pay the Termination Fee or SellerExpenses when due, that party shall in addition thereto pay to the other party all costs and expenses (including fees and disbursements of counsel) incurred in collecting such Termination Fee or Expenses, as the case may be, fails to timely pay together with interest on the Seller amount of the Termination Fee or Purchaser Termination Fee, Expenses (or any unpaid portion thereof) from the date such payment was required to be made until the date such payment is received by such party at the prime rate as applicable, when due reported in accordance with this Section 9.03, and, The Wall Street Journal as in order effect from time to obtain time during such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitperiod.

Termination Fee. In the event that: (a) If the Borrower attempts to breach this Agreement by terminating this Agreement upon less than 60 days notice during the Term (or upon less than 60 days notice during a Renewal Term), or (b) this Agreement is terminated as a result of the occurrence of an Event of Default or a Defaulting Event, immediately upon such termination and in addition to and any other payments Borrower is required to make hereunder, Borrower shall pay to Lender a fee equal to $2,500. (k) Notwithstanding anything to the contrary contained in the Loan Agreement, there shall be no dollar limit on the amount the Borrower is permitted to invest in the Guarantor, and any default arising by Seller or Purchaser pursuant virtue of any failure by the Borrower to Section 9.01(bcomply with any such limit in the past is hereby waived." 3. Contemporaneously herewith, (a) the Borrower shall execute and at such time deliver to First Union a $3,500,000 Third Amended and Restated Revolving Promissory Note (the "Third Amended and Restated Revolving Promissory Note"), which shall supersede and replace the Second Amended and Restated Revolving Promissory Note, (b) the Borrower and the Guarantor shall execute and deliver to First Union resolutions authorizing this Agreement and the transactions described herein, and (c) the Borrower shall deliver to First Union intercreditor agreements from AT&T Commercial Finance Corporation and ICON Capital Corp. (collectively, the "Intercreditor Agreements"), all conditions of which shall be in form and content satisfactory to First Union." 4. All references in the Loan Agreement to the Second Amended and estated Revolving Promissory Note are hereby deleted and replaced with "Third Amended and Restated Revolving Promissory Note". The copy of the Second Amended and Restated Revolving Promissory Note attached to the Loan Agreement as Exhibit A is hereby deleted and a copy of the Third Amended and Restated Revolving Promissory Note is attached in lieu thereof. 5. The Borrower acknowledges and agrees that all indebtedness, liabilities and obligations of the Borrower to First Union, including without limitation, the Indebtedness evidenced by the Third Amended and Restated Revolving Promissory Note, shall (except as set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)the Intercreditor Agreements) shall have been satisfied or, for those conditions intended continue to be satisfied at secured by a first lien on and security interest in all of the ClosingBorrower's assets." 6. The Guarantor hereby consents to the Accommodations and further acknowledges and affirms that the Guaranty shall continue to secure all indebtedness, liabilities and obligations of the Borrower to First Union, including without limitation, the Indebtedness evidenced by the Third Amended and Restated Revolving Promissory Note, and shall continue to be capable secured by a first lien on and security interest in all of being satisfiedthe Guarantor's assets." 7. This Agreement and the other Loan Documents constitute the entire understanding and agreement among the parties hereto and supersede any prior or contemporaneous oral understanding with respect to the subject matter hereof. Except as expressly modified herein, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay SellerLoan Documents remain unmodified and in full force and effect in accordance with their terms. To the extent that there is a conflict between this Agreement and the Loan Documents, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (shall prevail." If the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election foregoing is in accordance with this Section 9.03(a)your agreement, please indicate the same by signing below. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit."

Termination Fee. (ai) If Buyer terminates this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b10(a)(ii)(C) and at such time all conditions set forth in or the Company terminates this Agreement pursuant to Section 8.01 and Section 8.03 (other than Section 8.03(d10(a)(iii)(C)) , the Parties agree that the Buyer shall have been satisfied orsuffered a loss and value of an incalculable nature and amount, for those conditions intended unrecoverable in law, and Company shall pay to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, Buyer a termination fee of $2,300,000 500,000 Euros (the “Purchaser Termination Fee”), . The Termination Fee shall be payable in immediately available funds by wire transfer of immediately available funds no later than 10 Business Days after such termination. (the “Purchaser Fee Election”ii) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes Buyer’s right to receive payment of the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee this Section 10(b) shall be the sole and exclusive remedy, including on account remedy of punitive damages, of the Seller and its Subsidiaries against Purchaser Buyer or any of its Subsidiaries, Affiliates, Affiliates against Company or any of its Affiliates or any of their respective stockholders, directorspartners, officers, employees members or agents representatives for any and all Losses losses that may be suffered as a result of such termination. For the avoidance of doubtbased upon, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless resulting from or arising out of the time circumstances giving rise to such termination pursuant to Section 10(a)(ii)(C) or 10(a)(iii)(C), and upon payment of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a10(b), none of the Company or any of its Affiliates or any of their respective stockholders, partners, members or representatives shall have any further liability or obligation relating to or arising out of this Agreement or any of the Transaction Documents or the transactions contemplated by this Agreement or any of the Transaction Documents. (biii) If Company terminates this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii10(a)(iii)(D), then Seller the Parties agree that the Company shall have suffered a loss and value of an incalculable nature and amount, unrecoverable in law, and the Buyer shall pay Purchaser $2,300,000 (to Company the “Seller Termination Fee”) not later than the day of such termination, . The Termination Fee shall be payable in immediately available funds by wire transfer of immediately available funds. no later than 10 Business Days after such termination. (iv) Notwithstanding anything to the contrary in this Agreement, PurchaserCompany’s receipt right to receive payment of the Seller Termination Fee pursuant to the preceding sentence this Section 10(b) shall be the sole and exclusive remedy, including on account remedy of punitive damages, of the Purchaser and its Subsidiaries against Seller Company or any of its Subsidiaries, Affiliates, Affiliates against Buyer or any of its Affiliates or any of their respective stockholders, directorspartners, officers, employees members or agents representatives for any and all Losses losses that may be suffered as a result based upon, resulting from or arising out of the circumstances giving rise to such termination pursuant to Section 10(a)(iii)(D), and upon payment of the Termination Fee in accordance with this Section 10(b), none of the Buyer or any of its Affiliates or any of their respective stockholders, partners, members or representatives shall have any further liability or obligation relating to or arising out of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each any of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of Transaction Documents or the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) Agreement or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation any of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitTransaction Documents.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at The parties agree that the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements conditions contained in this Section 9.03 9.3 are an integral part of the transactions contemplated hereby, and that the Termination Fee constitutes liquidated damages and not a penalty. The parties agree that a nonrefundable fee in the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in cash (the “Termination Fee”) shall be paid, on the conditions set forth herein, within two business days after termination pursuant to Section 9.1, as provided below. (a) In the event that any party hereto (a “Repudiating Party”) repudiates this Agreement or otherwise refuses to consummate the transactions contemplated hereunder, then the Repudiating Party shall pay the Termination Fee to the non-repudiating party. (b) Sellers shall pay the Termination Fee to Purchaser upon satisfaction of the following: (i) this Agreement is terminated by Purchaser pursuant to Section 9.1(b) due to or in connection with any Sellers’ breach of, or failure to fulfill its obligations under Article VI of this Agreement; and (ii) at the time of the termination of this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation each of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts conditions set forth in Section 8.2 has been satisfied or waived. Provided however, no Termination Fee shall be payable to Purchaser if: (1) Purchaser terminates this Agreement due to Seller’s violation of Section 9.036.8; and (2) Sellers' violation of Section 6.8 is caused by and results from any act outside the control of Sellers or the Company, whether or not covered by insurance, including (but not necessarily limited to) an act of God such paying party as fire, flood, tornado, and similar events or any misconduct by any person (unless approved or ratified by any of the parties listed in the definition of "Knowledge" below). For the avoidance of doubt, no Termination Fee shall pay be payable by Sellers if Purchaser terminates this Agreement based solely on the other party its reasonable and documented costs and expenses breach of one or more representations or warranties contained in Article III of this Agreement (including reasonable and documented attorneys’ fees and expensesthe Schedules thereunder) in connection except where Seller’s breach involves fraud, intentional breach, or intentional omission with such suitrespect to any representation or warranty.

Termination Fee. In the event that Trican Parent is entitled to terminate this Agreement pursuant to (a) If this Agreement Section 8.1(f) or Section 8.1(d) absent a willful or intentional breach by ▇▇▇▇▇ Parent or Buyer that is terminated by Seller the proximate cause of the Transaction not being consummated or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended not being able to be satisfied at the Closing, shall be capable of being satisfiedconsummated, then in either case ▇▇▇▇▇ Parent shall pay, or cause to be paid, to the Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), Companies by wire transfer of immediately available funds to an account designated in writing by Trican Parent, a termination fee of $20,000,000 (the “Purchaser Fee ElectionTier One Termination Fee”), or (b) Section 8.1(d), but solely as a result of ▇▇▇▇▇ Parent’s or Buyer’s willful or intentional breach that is the proximate cause of the Transaction not being consummated or not being able to be consummated or in the event ▇▇▇▇▇ Parent or Buyer otherwise fails to consummate the Transaction after satisfaction or waiver of each condition to the obligations of ▇▇▇▇▇ Parent and Buyer under Sections 7.1 and 7.2 (except for conditions that would by their nature be satisfied upon the consummation of the Transaction) and in the event the Transaction was consummated and the Equity Financing was made available in accordance with the terms set forth in the Equity Commitment Letter, the debt financing contemplated by the Term Debt Commitment (or any analogous commitment in connection with any alternative financing described in Section 6.24) would be made available to Buyer in accordance with the Term Debt Commitment (or such alternative commitment), then in each of the foregoing cases ▇▇▇▇▇ Parent shall pay, or cause to be paid, to the Seller Companies, a termination fee of $55,000,000 (the “Tier Two Termination Fee”) or (y) by wire transfer of immediately available funds to irrevocably waive Seller’s right to receive an account designated in writing by Trican Parent no later than two Business Days after the Purchaser date of such termination. The Parties acknowledge and agree that in no event will both the Tier One Termination Fee and elect the Tier Two Termination Fee be payable and no Buyer Company will be required to pursue monetary damages available pay the Tier One Termination Fee or the Tier Two Termination Fee on more than one occasion. If Trican Parent is entitled to Purchaser under terminate this Agreement in circumstances where both the terms Tier One Termination Fee and the Tier Two Termination Fee would be payable, only the Tier Two Termination Fee will be payable by ▇▇▇▇▇ Parent to the Seller Companies. The Parties have agreed in light of the circumstances existing at the time of execution of this Agreement (including the “Purchaser Damages Election”)inability of the Parties to quantify the damages that may be suffered by Trican Parent and the Seller Companies) that this Section 8.4 is reasonable, that the Tier One Termination Fee or the Tier Two Termination Fee, as applicable, represents a good faith, fair estimate of the damages that Trican Parent and the Seller Companies would suffer in the applicable circumstances and that, if payable, the Tier One Termination Fee or the Tier Two Termination Fee, as applicable, shall be payable as liquidated damages (and not as a penalty) without requiring Trican Parent or the Seller Companies to prove actual damages. Notwithstanding anything to the contrary in this Agreement, if Seller makes in the Purchaser Fee Electionevent that ▇▇▇▇▇ Parent or Buyer fails to effect the Closing for any reason or no reason or a breach of its obligations hereunder (whether willfully, and Purchaser pays the Purchaser Termination Fee pursuant intentionally, knowingly or otherwise) or fails to the preceding sentenceperform hereunder (whether willfully, such Purchaser Termination Fee shall be intentionally, knowingly or otherwise), then the sole and exclusive remedyremedy (whether at law, including on account in equity, in contract, in tort or otherwise) of punitive damagesTrican Parent and the Seller Companies or any Person claiming by, through or for the benefit of the Seller Companies or Trican Parent against ▇▇▇▇▇ Parent or the Buyer and its Subsidiaries against Purchaser each of their former, current or any of its Subsidiariesfuture equity holders, controlling Persons, managers, officers, employees, agents, general or limited partners, managers, management companies, members, Affiliates, stockholders, directors, officers, employees Representatives or agents for assignees and any and all Losses suffered as former, current or future heirs, executors, administrators, trustees, successors or assigns of any of the foregoing, (each, a result of such termination. For “Buyer Related Party,” and collectively, the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach “Buyer Related Parties”) in respect of this Agreement Agreement, any Transaction Document or agreement executed in connection herewith (regardless of including the time of breach). If Seller makes Financing Commitments) and the Purchaser Damages Election, then Seller transactions contemplated hereby and thereby shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under terminate this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.this

Termination Fee. (a) If this Agreement is terminated (i) by Seller or Purchaser pursuant to Section 9.01(b10.1(f), or (ii) and at such time all conditions set forth in by either Buyer or Seller pursuant to Section 8.01 and Section 8.03 (other than Section 8.03(d)10.1(h) if the ▇▇▇▇▇▇▇▇ Reverse Termination Fee has become payable by Buyer as a result of the termination of the ▇▇▇▇▇▇▇▇ Purchase Agreement, then Buyer shall have been satisfied or, for those conditions intended pay or cause to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) paid an amount in cash equal to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 77,839,364 (the “Purchaser Reverse Termination Fee”), ) to Seller or its designee within five (5) Business Days after such termination. Any amount that becomes payable pursuant to this Section 10.3(a) shall be paid by wire transfer of immediately available funds to the account or accounts designated by Seller in writing. (b) If Buyer fails to promptly pay the amount due pursuant to this Section 10.3, Buyer shall pay to Seller, Seller’s reasonable and documented fees, costs and expenses (including reasonable and documented attorney’s fees and expenses and disbursements) incurred in connection with seeking payment of the amount due pursuant to this Section 10.3 from Buyer (including with respect to any Action commenced by Seller) (any amounts due to Seller pursuant to Section 6.2 or this Section 10.3, collectively, the “Purchaser Fee ElectionReimbursement Amount”). (c) or (y) to irrevocably waive Seller’s right to receive The Parties acknowledge that the Purchaser agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that without these agreements, Seller would not enter into this Agreement. The Parties acknowledge that the payment by ▇▇▇▇▇ of the Reverse Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”)is not a penalty, but constitutes liquidated damages. Notwithstanding anything to the contrary in this Agreement, if Seller makes but subject to Seller’s rights set forth in Section 8.1, the Purchaser Fee Election, and Purchaser pays collective monetary damages payable by Buyer or any of its Affiliates for breaches (including for willful breach) under this Agreement shall not exceed an amount equal to the Purchaser Reverse Termination Fee (and the Reimbursement Amount, if applicable) for all such breaches; provided, however, that nothing set forth herein shall affect the obligations of Buyer, or its applicable Affiliate, pursuant to the preceding sentenceapplicable Confidentiality Agreement. (d) For the avoidance of doubt, such Purchaser while Seller may pursue both a grant of specific performance prior to termination to the extent permitted by Section 8.1 and the payment of the Reverse Termination Fee (and the payment of the Reimbursement Amount, if applicable), under no circumstances shall Seller be permitted or entitled to receive both (i) a grant of specific performance to require Buyer to consummate the Closing and (ii) payment of the Reverse Termination Fee. In no event shall Seller be entitled to receive the Reverse Termination Fee on more than one occasion. (e) In a scenario where Seller is entitled to terminate and receive the Reverse Termination Fee and other than in the case of Fraud, then upon termination of this Agreement, the Reverse Termination Fee (and the payment of the Reimbursement Amount, if applicable) shall be the sole and exclusive remedy, including on account remedy of punitive damages, of the Seller and its Subsidiaries Affiliates and their respective Representatives against Purchaser (i) Buyer Parent, Buyer, their Affiliates and their respective Representatives and (ii) any former, current and future direct and indirect holders of any equity, partnership or any of its Subsidiarieslimited liability company or other interest, incorporators or organizers, controlling Persons, Affiliates, stockholdersRepresentatives, directorsassignees or successors of any Person named in clause (i) above (clauses (i) and (ii), officerscollectively, employees or agents the “Buyer Related Parties”) for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred losses or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses Liabilities suffered as a result of the failure of the Closing to be consummated or for any other matter under, relating to or arising out of this Agreement or any other Transaction Document or any of the transactions contemplated hereby or thereby, whether based on Contract, tort, strict liability, other Laws or otherwise, or any Claim based on, in respect of, or by reason of any of the foregoing, and upon payment of the Reverse Termination Fee (and the payment of the Reimbursement Amount, if applicable), neither Seller, any of its Affiliates or any of its respective Representatives shall pursue or be entitled to pursue or make any Claim against any Buyer Related Party, and no Buyer Related Party shall have any Liability arising out of the circumstances giving rise to any termination of this Agreement pursuant or for any other matter under, relating to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each arising out of the parties acknowledges that the agreements contained or in connection with this Section 9.03 are an integral part Agreement or any other Transaction Document or any of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) hereby or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitthereby.

Termination Fee. (a) If Sellers terminate this Agreement is terminated by Seller or Purchaser pursuant to and in accordance with Section 9.01(b10.01(d) and at such time all conditions set forth in or Section 8.01 and Section 8.03 (other than Section 8.03(d10.01(e)) , then Purchaser shall have been satisfied or, for those conditions intended pay or cause to be satisfied paid to Sellers to an account and in such proportion designated by NRGWG (on behalf of Sellers) at least two (2) Business Days prior to the Closing, shall be capable date of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”)payment, by wire transfer of immediately available funds within five (5) Business Days following the date of termination, an aggregate amount equal to $24,900,000 (the “Purchaser Fee ElectionTermination Fee”). Upon termination of this Agreement by Sellers pursuant to and in accordance with Section 10.01(d) or (y) to irrevocably waive Seller’s Section 10.01(e), Sellers’ right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account remedy of punitive damages, of the Seller Sellers and their Affiliates against Purchaser and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholdersFinancing Sources and Representatives, directorsand its and their respective Related Persons (including Purchaser Guarantor) (collectively, officers, employees or agents the “Purchaser Parties”) for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled or failure to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants perform under this Agreement (including any inaccuracy or breach of any representation, warranty, covenant, condition, agreement or obligation of Purchaser under this Agreement) or of the failure of the Closing to be consummated, or otherwise in connection with the transactions contemplated by this Agreement, and other than Section 5.14payment of such amount (as long as the Closing is not consummated), which none of the Purchaser Parties shall have any Liability or obligations arising out of or relating to this Agreement or the transactions contemplated hereby, except for any obligation of Platinum Equity Advisors, LLC under the Confidentiality Agreement. Notwithstanding the foregoing, Sellers shall be subject permitted to claims for breach without regard to materiality) prior to termination. In seek both specific performance under Section 11.09 and payment of the Termination Fee; provided, however, in no event shall Purchaser Sellers be required entitled both to pay receive the Purchaser Termination Fee if Seller has and to a grant of specific performance under Section 11.09. Notwithstanding anything in this Agreement to the contrary, under no circumstances (as long as the Closing does not delivered occur) will Sellers and their respective Related Persons, in the aggregate, be entitled to (i) monetary damages or other Losses in excess of (or, where the Termination Fee is payable, other than) the amount of the Termination Fee, or (ii) monetary damages, Losses or other recourse of any kind (including the Termination Fee) from any Purchaser Fee Election Party other than Purchaser and, solely to the extent set forth in accordance with this Section 9.03(a)the Limited Guarantee, Purchaser Guarantor. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole The Parties acknowledge and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges agree that the agreements contained in this Section 9.03 10.03 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Parties would not enter into this Agreement, . Each of the Parties further acknowledges on behalf of itself and its Affiliates that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are payment of the Termination Fee is not a penalty but rather constitute is liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, Sellers and their Affiliates in the circumstances in which such termination fee is payable payable, for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller which amount would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails otherwise be impossible to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance calculate with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitprecision.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b8.1(e) and at such time all conditions set forth in Section 8.01 and Section 8.03 or (other than Section 8.03(df)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then (i) in the case of termination under Section 8.1(e), Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day immediately following such termination either pay Buyer an amount equal to seven hundred fifty thousand dollars (x$750,000) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser "Termination Fee”"), by wire transfer and (ii) in the case of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee termination under Section 8.1(f), Seller shall, simultaneously with such termination and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For condition thereof, pay Buyer the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)each case in same-day funds. (b) If this Agreement is terminated pursuant to by either party under Section 9.01(c)(ii) or Section 9.01(d)(ii8.1(g), and prior thereto there has been publicly announced an Acquisition Proposal, then if within one year of such termination Seller or FCB either (A) enters into a definitive agreement with respect to an Acquisition Proposal or (B) consummates an Acquisition Proposal, Seller shall immediately pay Purchaser $2,300,000 (Buyer the “Seller Termination Fee”Fee set forth in Section 8.4(a) not later than the in same-day of such termination, by wire transfer of immediately available funds. Notwithstanding anything For purposes of clauses (A) and (B) above, the reference to 24.99% in the contrary in this Agreement, Purchaser’s receipt definition of the Seller Termination Fee pursuant to the preceding sentence Acquisition Proposal shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as "a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)majority". (c) Each The payment of the parties acknowledges that the agreements contained in Termination Fee shall fully discharge Seller from any and all liability under this Section 9.03 are an integral part of Agreement and related to the transactions contemplated herein, and Buyer shall not be entitled to any other relief or remedy against Seller. If the Termination Fee is not payable, Buyer may pursue any and all remedies available to it against Seller on account of a willful and material breach by Seller of any of the provisions of this Agreement. Moreover, that if the amounts (if any) Termination Fee is payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller8.1(e)(ii), as applicable, in Buyer shall have the circumstances in which such termination fee is payable for the efforts right to pursue any and resources expended and opportunities foregone while negotiating this Agreement and in reliance all remedies available to it against Seller on this Agreement and on the expectation account of the consummation willful and material breach by Seller of Section 6.7 in lieu of accepting the Termination Fee under Section 8.4(a), Seller may pursue any and all remedies available to it against Buyer on account of a willful and material breach by Buyer of any of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into provisions of this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. To compensate Sterling for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities by Sterling, the Company and Sterling agree as follows: (a) If Provided that Sterling shall not be in material breach of its obligations under this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have which breach has not been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, cured promptly following receipt of written notice thereof by the Company specifying in reasonable detail the basis of such electionalleged breach), a termination fee the Company shall pay to Sterling the sum of $2,300,000 2,900,000 (the “Purchaser Termination Fee”), if this Agreement is terminated (i) by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser Company under the terms provisions of Section 10.1(e), (ii) by either Sterling or the Company under the provisions of Section 10.1(f) due to the failure of the Company’s shareholders to approve and adopt this Agreement (and the “Purchaser Damages Election”). Notwithstanding anything Merger, if at the time of such failure to so approve and adopt this Agreement and the Merger there shall exist an Acquisition Proposal with respect to the contrary in Company and, within nine months of the termination of this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant Company enters into a definitive agreement with any third party with respect to any Acquisition Proposal with respect to the preceding sentence, such Purchaser Termination Fee shall be Company or (iii) by Sterling under the sole and exclusive remedy, including on account provisions of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a10.1(g). (b) If Any payment required by clauses (i) and (iii) of paragraph (a) of this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller 8.14 shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the become payable within two Business Days after termination of this Agreement pursuant Agreement. Any payment of the Termination Fee required by clause (ii) of paragraph (a) of this Section 8.14 shall become payable within two (2) Business Days of the Company’s entry into the definitive agreement referred to Section 9.01(c)(ii) or Section 9.01(d)(iiin clause (ii). (c) Each of the parties The Company acknowledges that the agreements contained in this Section 9.03 8.14 are an integral part of the transactions contemplated by in this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller Sterling would not enter into this Agreement. Accordingly; accordingly, if Purchaser or Sellerthe Company fails to promptly pay the Termination Fee when due, the Company shall in addition thereto pay to Sterling all costs and expenses (including fees and disbursements of counsel) incurred in collecting such Termination Fee, as the case may be, fails to timely pay together with interest on the Seller amount of the Termination Fee (or Purchaser Termination Fee, any unpaid portion thereof) from the date such payment was required to be made until the date such payment is received by Sterling at the prime rate as applicable, when due reported in accordance with this Section 9.03, and, The Wall Street Journal as in order effect from time to obtain time during such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitperiod.

Termination Fee. In the event that (a) If a proposal with respect to a transaction relating to the acquisition of a material portion of the capital stock of the Company or any of the Company's Subsidiaries, its or their assets or business, whether in whole or in part, whether directly or indirectly, through purchase, merger, consolidation or otherwise (an "ACQUISITION TRANSACTION") is commenced by the Company, publicly proposed, publicly disclosed or communicated to the Company or any representative or agent thereof after the date of this Agreement and prior to the date of termination of this Agreement, (b) this agreement is thereafter terminated by Seller or Purchaser the Company pursuant to Section 9.01(b13.1(e) or by the Purchasers pursuant to Section 13.1(f), and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)c) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day within six (6) months following such termination either (x) to require Purchaser to an Acquisition Transaction is consummated or the Company enters into an agreement relating thereto, then in any such event, the Company shall pay Seller, promptly following such election, a termination fee of the Purchasers $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available 950,000.00 in same day funds (the “Purchaser Fee Election”"TERMINATION FEE") or (y) to irrevocably waive Seller’s right to receive plus reimbursement of each Purchaser's expenses incurred in connection with the Purchaser Termination Fee Transactions contemplated hereby, including, without limitation, all due diligence expenses and elect to pursue monetary damages available to Purchaser under expenses of counsel; PROVIDED, that if the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee warrants have been issued pursuant to Section 9.1(s) of the preceding sentenceCredit Agreement in consideration for certain guarantees provided in connection therewith, such Purchaser the Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination$750,000. For the avoidance of doubt, if Seller makes the Purchaser The Termination Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled paid to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result respective Purchasers pro rata based on the number of fraud or material breach shares of Common Stock to be purchased by the Purchaser respective Purchasers hereunder as set forth on their respective signature pages hereto; PROVIDED, that if the warrants referred to in the proviso of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence have not been issued, the Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, paid as follows: (i) $200,000 of the Purchaser Termination Fee shall be paid to SAP prior to any pro rata allocation among the Purchasers, and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result (ii) the remaining portion of the termination of this Agreement pursuant Termination Fee shall be paid to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and respective Purchasers pro rata based on the expectation number of shares of Common Stock to be purchased by the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, respective Purchasers hereunder as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suiton their respective signature pages hereto.

Termination Fee. (a) If In the event that either: (X) the MGM Entities are entitled to terminate this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b10.1(d) hereof, or (Y) (i) the Closing has not occurred by the Estimated Closing Date (as such Estimated Closing Date may be extended by the Extension Payment), and at such time all (ii) each of the Closing conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall 7.1 have been satisfied oror waived by Purchaser or would have been satisfied but for Purchaser's failure to use its Commercially Reasonable Efforts to perform its respective obligations under this Agreement, and (iii) each of the Closing conditions set forth in Section 7.3 have been satisfied or waived by Purchaser or would have been satisfied but for those Purchaser failing to use its Commercially Reasonable Efforts to perform its respective obligations under this Agreement in accordance with the terms and conditions intended to be satisfied at hereof, and (iv) the Closing, shall be capable of being satisfiedMGM Entities are not otherwise in default hereunder, then Seller in either such event (X) or (Y) the MGM Entities shall irrevocably elect no later than 5:00 p.m. Eastern Time have the right, as its sole and exclusive remedy, to give written notice to Purchaser of their intention to terminate this Agreement if Purchaser fails to close (or be prepared to close) the transactions contemplated by this Agreement on or prior to the fifth Business Day following receipt of such written notice and as promptly as practicable following termination either (xwhich shall occur automatically on such fifth Business Day unless agreed to otherwise by the Parties in writing) Purchaser shall pay, or cause to require be paid, in same day funds to Seller, the sum of Twenty-Five Million Dollars ($25,000,000) (the "Seller Termination Fee"). Only one Termination Fee shall be payable to Seller regardless of the circumstances. In the event Seller receives payment of the Termination Fee, Seller, and Seller on behalf of its Affiliates, agrees to forego and not to pursue (or aid any other Person in pursuing) or assign any allegation, claim, right or remedy, whether legal or equitable, including specific performance, against, directly or indirectly, Purchaser or any of their respective Affiliates, for Purchaser's failure to consummate the transactions contemplated by this Agreement. The obligation of Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to this Section 6.14(a) shall be guaranteed by Purchaser Parent pursuant to the preceding sentencePurchaser Guaranty. Subject to the occurrence of the matters set forth in subsection (X) or subsection (Y) (i), such (ii), (iii) and (iv) of the first sentence of this Section 6.14(a), the Parties acknowledge and agree that the MGM Entities would sustain substantial damages in the event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser's failure to close, and Seller's actual damages in the event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser's failure to close would be difficult or impractical to determine, and the Termination Fee represents a reasonable estimate of the harm likely to be suffered by Seller in the event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser's failure to close. (b) In the event that either: (X)(i) the Closing has not occurred by the Estimated Closing Date; and (ii) each of the closing conditions set forth in Section 7.1 have been satisfied or waived by Seller or would have been satisfied but for the MGM Entities' failure to use its Commercially Reasonably Efforts to perform their respective obligations under this Agreement; and (iii) the Closing conditions set forth in Section 7.2 have been satisfied or waived by Seller or would have been satisfied but for Seller failing to use its Commercially Reasonable Efforts to perform its obligations under this Agreement; and Purchaser is not otherwise in default hereunder, or (Y) prior to the Estimated Closing Date Seller executes an agreement with any other Person (other than Purchaser) for the sale or transfer of the Shares or for substantially all of the Companies' Assets, or (Z) Purchaser is entitled to terminate this Agreement pursuant to Section 10.1(c) hereof, then in any such event (X) or (Y) or (Z) the Purchaser shall be the have, as its sole and exclusive remedy, including on account the right to give written notice to Seller of punitive damagesits intention to terminate this Agreement and Seller shall pay, or cause to be paid, in same day funds to Purchaser, the sum of Five Million Dollars ($5,000,000) (the "Purchaser Termination Fee"). Only one Purchaser's Termination Fee shall be payable to Purchaser regardless of the Seller and its Subsidiaries against circumstances. In the event Purchaser or any receives payment of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach on behalf of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Electionits Affiliates, then Seller shall be entitled agrees to forego and not to pursue monetary damages for only those Losses incurred (or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (aid any other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election Person in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(iipursuing) or Section 9.01(d)(ii)assign any allegation, then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such terminationclaim, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive right or remedy, whether legal or equitable, including on account of punitive damagesspecific performance, of the Purchaser and its Subsidiaries against Seller against, directly or indirectly Seller, any MGM entity or any of its Subsidiaries, their respective Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant Seller's failure to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of consummate the transactions contemplated by this Agreement, that . Subject to the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation occurrence of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts matters set forth in subsections (X)(i), (ii), (iii) or (Y) or (Z) of the first sentence of this Section 9.036.14(b), such paying party shall pay the other party its Parties acknowledge and agree that Purchaser would sustain substantial damages in the event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Seller's failure to close, and Purchaser's actual damages in the event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Seller's failure to close would be difficult or impractical to determine, and the Purchaser Termination Fee represents a reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) estimate of the harm likely to be suffered by Purchaser in connection with such suitthe event the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Seller's failure to close.

Termination Fee. (a) If this Agreement is terminated by Seller (i) all of the conditions to Closing contained in ARTICLE VII have been satisfied or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 waived (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended that by their nature are to be satisfied at the Closing, shall be but subject to such conditions being capable of being satisfied) other than the condition set forth in Section 7.2(m), and this Agreement is terminated by Buyer or Sellers Representative pursuant to Section 8.2(a), or (ii) this Agreement is terminated by Buyer pursuant to Section 8.4(c), then Buyer shall pay to Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If (i) (A) all of the conditions to Closing (as defined in the TOMPC Purchase Agreement) contained in Article VII of the TOMPC Purchase Agreement have been satisfied or waived (other than conditions that by their nature are to be satisfied at the Closing (as defined in the TOMPC Purchase Agreement), but subject to such conditions being capable of being satisfied) other than the condition set forth in Section 7.2(k) of the TOMPC Purchase Agreement, and the TOMPC Purchase Agreement is terminated by Buyer or Seller (each as defined in the TOMPC Purchase Agreement) pursuant to Section 8.2(a) of the TOMPC Purchase Agreement, or (B) the TOMPC Purchase Agreement is terminated by Buyer (as defined in the TOMPC Purchase Agreement) pursuant to Section 8.4(c) of the TOMPC Purchase Agreement, and (ii) this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)8.5, then Seller Buyer shall pay Purchaser $2,300,000 (to Seller the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each In no event shall Seller be entitled to receive, or Buyer be obligated to pay, more than one payment of the parties acknowledges Termination Fee in connection with the termination of this Agreement. (d) In the event that Seller or its designee shall receive full payment of a Termination Fee pursuant to Section 8.7(a), the agreements contained receipt of such Termination Fee shall be deemed to be Buyer’s sole liability and entire obligation and Members’ and Seller’s exclusive remedy for any and all losses or damages suffered or incurred by Seller, the Members, any of their respective Affiliates or any other Person in connection with this Section 9.03 are an integral part Agreement and the TOMPC Purchase Agreement (and the termination hereof and thereof), the Transactions and the “Transactions” (as defined in the TOMPC Purchase Agreement) (and the abandonment thereof) or any matter forming the basis for such terminations, and none of the transactions contemplated by Seller, either Member, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against Buyer or any of its Affiliates or representatives arising out of or in connection with this Agreement, that the amounts TOMPC Agreement, the Transactions, the “Transactions” (if any) payable pursuant to Section 9.03(aas defined in the TOMPC Purchase Agreement) or Section 9.03(b) any matters forming the basis of such terminations, all of which claims, actions or proceedings are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suithereby waived.

Termination Fee. (a) If In the event of the termination of this Agreement is terminated by Seller or Purchaser PKI pursuant to Section 9.01(b6.1(c) and at such time all conditions set forth as a result of a material breach by Buyer of any of its agreements or covenants contained in this Agreement or Section 8.01 and 6.1(f) (or pursuant to Section 8.03 (other than Section 8.03(d)6.1(e) shall under circumstances in which PKI would have been satisfied orentitled to terminate this Agreement pursuant to Section 6.1(c) as a result of a material breach by Buyer of any of its agreements or covenants contained in this Agreement or Section 6.1(f)), for those conditions intended Buyer shall pay, or cause to be satisfied at the Closingpaid, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, PKI a termination fee of $2,300,000 (the “Purchaser Buyer Termination Fee”), ) of $75,000,000. The Buyer Termination Fee payable pursuant to this Section 6.3(a) shall be paid by wire transfer of immediately available same-day funds as promptly as reasonably practicable (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary and, in this Agreementany event, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of within two Business Days following such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (The parties acknowledge and hereby agree that the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Buyer Termination Fee pursuant if, as and when required to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained paid in accordance with this Section 9.03 are an integral part of the transactions contemplated by this Agreement6.3, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are shall not constitute a penalty but rather constitute represents liquidated damages damages, in a reasonable amount that will compensate Purchaser or Seller, as applicable, the PKI in the circumstances in which such termination fee it is payable for the efforts and resources expended and opportunities foregone while negotiating the Original Agreement and this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. The parties acknowledge and hereby agree that in no event shall Buyer be required to pay the Buyer Termination Fee on more than one occasion. For the avoidance of doubt, none of the Buyer Related Parties (other than Buyer, pursuant to, in accordance with and to the extent permitted by the terms hereof and the Sponsors, pursuant to, in accordance with and to the extent permitted by the Sponsor Guarantee) will have any liability to any Person, including any PKI Related Party relating to or arising out of the Original Agreement, this Agreement, the Financing or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether in equity or at law, in tort, contract or otherwise, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any Law or otherwise. (c) Notwithstanding anything to the contrary in this Agreement, in any circumstance in which this Agreement is validly terminated and the Buyer Termination Fee is paid in full pursuant to this Section 6.3, such payment of the Buyer Termination Fee and any Financing Cooperation Costs, Day 1 Breakage Costs and/or Collection Costs shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of PKI, its Subsidiaries, each other Seller and any of their respective Non-Party Affiliates (collectively, the “PKI Related Parties”) against Buyer, any of its subsidiaries, the Debt Financing Sources, or any of their respective Non-Party Affiliates (collectively, the “Buyer Related Parties”) for all losses, damages, liabilities, obligations, costs or expenses (“Losses”) in respect of or relating in any way to the Original Agreement, this Agreement, the Commitment Letters or the Sponsor Guarantee, the performance hereof or thereof including any breach (whether a Buyer Willful Breach, material breach or otherwise) of any representation, warranty, covenant or agreement or otherwise in respect of or relating in any way to the Original Agreement, this Agreement, the Commitment Letters or the Sponsor Guarantee or any oral representation made or alleged to be made in connection herewith or therewith or the transactions contemplated hereby or thereby (including the abandonment or termination thereof or the failure of the Closing to occur), in each case, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Buyer, by the enforcement of any assessment or by any Proceeding, by virtue of any Law, pursuant to any theory of law or equity, in contract, in tort or otherwise) (such agreements and related matters, collectively, the “Transaction-Related Matters”) and upon payment of the Buyer Termination Fee to PKI pursuant to Section 6.3(a), none of the Buyer Related Parties shall have any liability or obligation of any nature whatsoever to PKI or any other PKI Related Party for any Transaction-Related Matter (other than the obligation to pay any Financing Cooperation Costs, Day 1 Breakage Costs and/or Collection Costs) and neither PKI nor any other PKI Related Party shall bring any Proceeding or otherwise seek to recover any other Losses against any Buyer or any other Buyer Related Party for any Transaction-Related Matter (other than the obligation to pay any Financing Cooperation Costs, Day 1 Breakage Costs and/or Collection Costs). Further, each of the parties to this Agreement expressly acknowledges and agrees that under no circumstances shall (A) the maximum aggregate liability of Buyer (and Sponsors in accordance with, and subject to the limitations in, the Sponsor Guarantee) for all Transaction-Related Matters exceed an amount equal to the Buyer Termination Fee plus the amount of any Financing Cooperation Costs, Day 1 Breakage Costs and/or Collection Costs (the “Cap”), (B) any PKI Related Party seek or be entitled to recover any money damages in excess of the Cap, (C) any PKI Related Party bring any Proceeding or otherwise seek to recover any Losses against any Buyer Related Party (other than Buyer and the Sponsors (pursuant to, and subject to the limitations in, the Sponsor Guarantee)) for any Transaction-Related Matter or (D) any Buyer Related Party (other than Buyer and the Sponsors (pursuant to, and subject to the limitations in, the Sponsor Guarantee)) have any liability or obligation of any nature whatsoever to any PKI Related Party for any Transaction-Related Matter. (d) While PKI may pursue both a grant of specific performance in accordance with Section 9.13 and the payment of the Buyer Termination Fee under Section 6.3(a), under no circumstances shall any Person or Persons (whether acting together or separately and whether in one or separate Proceedings), including any PKI Related Party, be permitted or entitled to receive in connection with the Original Agreement or this Agreement both (i) a grant of specific performance to require the Financing to be funded or Buyer to consummate the Closing and (ii) the payment of the Buyer Termination Fee or monetary damages of any kind (other than (A) the amount of Financing Cooperation Costs, Day 1 Breakage Costs and/or Collection Costs and (B) solely to the extent Closing occurs, solely with respect to any post-Closing obligations of Buyer). (e) The Parties acknowledge that the agreements contained in this Section 6.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, neither Purchaser nor Seller the Parties would not enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, Buyer fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when any amount due in accordance with pursuant to this Section 9.036.3, and, in order to obtain such the payment, Purchaser or Seller, as the case may be, PKI commences a suit that Proceeding which results in a judgment against the other party Buyer for the amounts payment set forth in this Section 9.036.3, such paying party shall pay the other party or parties, as applicable, its or their reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and expensesfees) in connection with such suitProceeding, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received (collectively, the “Collection Costs”). (f) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Buyer Related Parties and their respective successors, permitted assigns, heirs and legal representatives. The parties agree that the Buyer Related Parties are express third-party beneficiaries of this Section 6.3.

Termination Fee. (ai) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions Upon entry of the Bidding Procedures Order, the termination fee provisions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied orthe Order of the Bankruptcy Court entered on November 15, for those conditions intended to be satisfied at the Closing, 2001 shall be capable deemed terminated in respect of being satisfied, then Seller this Agreement. (ii) The Bidding Procedures Order shall irrevocably elect no later than 5:00 p.m. Eastern Time on provide for the fifth Business Day following such termination either (x) right of the Buyer to require Purchaser to pay Seller, promptly following such election, receive a termination fee equal to two (2%) percent of the entire Purchase Price ($2,300,000 170,000.00) (the “Purchaser "Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”") or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms promptly upon termination of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability (except for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered a termination as a result of the termination Buyer's willful and material breach) the following events: (i) approval by the Bankruptcy Court, or any court of competent jurisdiction, of any Competing Bid; (ii) the determination by the Seller or any Chapter 11 or 7 trustee of Seller not to proceed with the transactions under this Agreement pursuant to Section 9.01(c)(iiAgreement; (iii) the sale of all or Section 9.01(d)(ii). (c) Each substantially all of the parties acknowledges that assets or outstanding capital stock of or business combination involving the agreements contained in this Section 9.03 are an integral part Seller and a party other than the Buyer; (iv) the conversion of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not Bankruptcy Case into a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation case under Chapter 7 of the consummation Bankruptcy Code; (v) the filing by Seller of a liquidating chapter 11 plan without acceptance of any asset purchase; or (vi) the failure to satisfy any of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts conditions set forth in this Article VIII hereof after entry of the Bidding Procedures Order (unless such failure results directly from the action of Buyer). Notwithstanding the foregoing, the failure to satisfy the condition in Section 9.038.8 hereof only (but not any other condition to Closing) shall not entitle Buyer to the Termination Fee unless such failure shall have a material adverse effect on the operation of the Business. The Termination Fee shall be paid directly out of the cash proceeds of the purchase price paid by any competing bidder or person or entity funding any plan, such paying party shall pay or otherwise out of the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitestate of the Seller as a super priority administrative claim.

Termination Fee. It is understood by the parties hereto that the Termination Fee shall only become due and payable to the Buyer if (ai) If the Seller elects not to consummate the transaction contemplated herein for any reason other than those set forth in Sections 11.1.1 and 11.1.3, (ii) a Superior Proposal is received by Seller prior to Seller’s election not to consummate such transaction, and (iii) within six (6) months from the date of Termination of this Agreement is terminated by the Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”11.1.3(ii), by wire the Seller agrees to or enters into an agreement to sell or transfer the Business, whether through a sale of immediately available funds (the “Purchaser Fee Election”) all, or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damagessubstantially all, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt ownership interests of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy(however characterized) or any successor thereto, including on account or through a sale of punitive damagesall, or substantially all, of the Purchaser and its Subsidiaries against assets of the Seller or any of its Subsidiariessuccessor thereto, Affiliates, stockholders, directors, officers, employees with the Person making the Superior Proposal or agents for any such Person’s Affiliate (a “Third Party Sale”) and all Losses suffered as a result the Third Party Sale ultimately closes. The Seller acknowledges and agrees that the Termination Fee represents the Parties’ best estimate of the termination out-of-pocket costs incurred by the Buyer and the value of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each management time, overhead, opportunity costs and other unallocated costs of the parties Buyer incurred by or on behalf of the Buyer in connection with this Agreement. The Seller further acknowledges that the agreements contained in provisions for the payment of this Section 9.03 Termination Fee are an integral part of the transactions transaction contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreementsprovisions, neither Purchaser nor Seller the Buyer would enter not have entered into this Agreement. Accordingly, if Purchaser or Payment of the Termination Fee shall be made in immediately available funds payable at the closing of the Third Party Sale. Seller, as and its principal commercial lenders, Spring Capital and BIA Digital (jointly), shall fully indemnify Buyer for any and all costs, including the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented payment of any attorneys’ fees and expenses) fees, incurred in connection with such suitthe collection and enforcement of any judgment relating to the non-payment of the Termination Fee.

Termination Fee. (a) If In the event that this Agreement is validly terminated by (i) Seller or Purchaser pursuant to Section 9.01(b8.1(c) and or Section 8.1(f) or (ii) JV Buyer pursuant to Section 8.1(d) or Section 8.1(e) at such a time all conditions when this Agreement is terminable by Seller pursuant to Section 8.1(c) or Section 8.1(f), then JV Buyer shall pay or cause to be paid to Seller the Termination Fee, in each case, as set forth in this Section 8.01 and Section 8.03 8.3; provided, however, that, notwithstanding anything herein to the contrary, no Termination Fee shall be payable in the event of a Seller Affiliate Financing Failure. (other than Section 8.03(d)b) shall have been satisfied orIn the event that the Termination Fee is payable, for those conditions intended JV Buyer will pay or cause to be satisfied at paid in cash the Closing, shall be capable of being satisfied, then Termination Fee to Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds within ten (10) Business Days after the “Purchaser date that this Agreement is so validly terminated and pursuant to wire transfer instructions provided by Seller. In no event shall JV Buyer be required to actually pay a Termination Fee Election”on more than one occasion. (c) or Notwithstanding anything herein to the contrary (ysubject to the last sentence of this Section 8.3(c) to irrevocably waive and the last sentence of Section 8.3(f)), in the event that this Agreement is validly terminated in accordance with its terms, (i) Seller’s right to receive the Purchaser a Termination Fee if, when and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee extent payable pursuant to the preceding sentence, such Purchaser Termination Fee Section 8.3(a) shall be constitute the sole and exclusive remedyremedy (whether at law, including on account of punitive damagesin equity, in contract, in tort or otherwise) of the Seller Group and its Subsidiaries each of their respective Affiliates and Representatives against Purchaser ▇▇▇▇▇▇, the Financing Sources or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents their respective Affiliates and Representatives and their successors and assigns for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of any representation, warranty, covenant or agreement herein or as a result of the failure of the transactions contemplated by the Transaction Documents to be consummated (whether or not willfully or intentionally) and (ii) upon payment of the Termination Fee (or, in the event of a valid termination of this Agreement (regardless in circumstances where no Termination Fee is payable, upon valid termination hereof), none of Buyers, the Financing Sources or any of their respective Affiliates shall have any further liability or obligation relating to or arising out of this Agreement, the Commitment Letters or the transactions contemplated hereby. Notwithstanding the other provisions of this Section 8.3, nothing shall limit the rights of the time of breach). If Seller makes Group to (A) bring or maintain any dispute or Action for any (x) injunction, specific performance or other equitable relief to the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement extent provided in Section 11.13 (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser unless a Termination Fee if Seller has not delivered the Purchaser Fee Election been paid in accordance with this Section 9.03(a8.3) or (y) breach of the Confidentiality Agreement, or (B) be reimbursed for any costs, fees and expenses (or indemnified) pursuant to the express terms hereof, including Section 6.3, Section 6.9, Section 6.12(a), Section 6.15(a) Section 6.15(d), Section 6.15(e), Section 6.15(f), Section 6.15(i), Section 6.18(c), Section 6.21, Section 8.3(d) or Section 11.5(b). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (cd) Each of the parties party hereto acknowledges that (i) the agreements contained in this Section 9.03 8.3 are an integral part of the transactions contemplated by hereby and (ii) without these agreements, the parties hereto would not enter into this Agreement. Accordingly, that if JV Buyer fails to timely pay the amounts (if any) Termination Fee to Seller in circumstances where a Termination Fee is payable to Seller pursuant to this Section 9.03(a8.3 and, in order to obtain such Termination Fee, Seller or its Affiliates commences any claim, dispute or Action in respect of such Termination Fee, then JV Buyer shall pay to Seller (A) the Termination Fee, plus (B) the lesser of (x) $5,000,000 and (y) the amount of any reasonable and documented fees, costs and expenses (including legal fees) incurred by Seller and its Affiliates in connection with any such claim, dispute or Action (the “Recovery Cost”). (e) In light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, the parties hereto acknowledge and agree that a Termination Fee, as and when required to be paid pursuant to this Section 9.03(b) are 8.3, shall not constitute a penalty but rather constitute will be liquidated damages damages, in a reasonable amount that will compensate Purchaser or Seller, as applicable, the Seller Group in the circumstances in which such termination fee Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and thatwhich amount would otherwise be impossible to calculate with precision. (f) Notwithstanding anything herein to the contrary (including this Section 8.3), without these agreementsunder no circumstances will Seller, neither Purchaser nor ▇▇▇▇▇▇, any of the Other Seller would enter into this AgreementGroup Entities or any of their Affiliates, in the aggregate, be entitled to monetary damages or monetary remedies for any claims, damages or other losses suffered as a result of the failure of the transactions contemplated hereby or in the Commitment Letters to be consummated or for a breach or failure to perform hereunder or thereunder or for any representation made or alleged to have been made in connection herewith or therewith, in an amount in excess of the Cap (as defined in the Limited Guaranty). AccordinglyWithout limiting the foregoing, if Purchaser Buyers fail to effect the Closing for any or no reason or otherwise breach this Agreement or fail to perform hereunder (in any case, whether willfully, intentionally, unintentionally or otherwise), and in each case the Closing has not occurred, in no event shall the Seller, as Everen or any of their respective Affiliates directly or indirectly seek any monetary damages from Buyers or any of their respective Affiliates in connection with this Agreement or any of the case may betransactions contemplated hereby (including the Financing), fails other than (without duplication and limited to timely pay the Seller amount of the Cap) (x) from JV Buyer to the extent expressly provided in this Section 8.3 and (y) to the extent that the Termination Fee and the Recovery Cost (if any) has not been paid to Seller in full by or Purchaser Termination Fee, as applicable, when due on behalf of JV Buyer in accordance with this Section 9.038.3, andfrom the Investors in accordance with the Limited Guaranty (provided, that in order such case, the aggregate amount payable under this Agreement and the Limited Guaranty or in connection with the transactions contemplated hereby and thereby shall not exceed an amount equal to obtain such paymentthe portion of the Termination Fee that has not already been paid to Seller by JV Buyer or the Investors, Purchaser if any) or G Buyer or GATX pursuant to the express terms herein. Notwithstanding the foregoing (subject to the amount of the Cap), the foregoing shall not prevent, limit or impair Seller or Everen from seeking and obtaining reimbursement of all and all costs, fees or expenses paid or incurred prior to any termination hereof that are payable or reimbursable by (i) any Buyer, GATX or any of its Affiliates to Seller, as Everen or any of their respective Affiliates pursuant to Section 6.3, Section 6.9, Section 6.12(a), Section 6.15(a), Section 6.15(d), Section 6.15(i), Section 6.18(c), Section 8.3(d) or Section 11.5(b), (ii) B Buyer or any of its Affiliates to Seller, Everen or any of their respective Affiliates pursuant to Section 6.15(e), or (iii) GATX or any of its Affiliates to Seller, Everen or any of their respective Affiliates pursuant to Section 6.15(f) or Section 6.21, and no such costs, fees or expenses shall count toward the case may be, commences a suit that results in a judgment against the other party for the amounts set forth limitations on recovery in this Section 9.038.3(f), but such paying party costs, fees or expenses shall pay count toward the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitCap.

Termination Fee. (a) If the Company or Sellers terminate this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b8.1(e), the SPAC will, within two (2) and at such time all conditions set forth in Section 8.01 and Section 8.03 (Business Days after the date that sufficient monies or other than Section 8.03(d)) shall assets have been satisfied orreleased from the Escrow Account, for those conditions intended pay the Company an amount equal to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either $1,000,000 (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), ) by wire transfer of immediately available funds to an account designated by the Company; provided that: (a) Buyer and the “Purchaser Fee Election”SPAC have received notice of termination from the Company or Sellers under Section 8.2, (b) the deficiency or deficiencies were not cured during the Cure Period; (yc) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee‌ will not be paid from the Escrow Account as set out more fully in Section 6.17, and (d) the Termination Fee will not be paid from monies or other assets released from the Escrow Account that are payable to the SPAC Shareholders or the IPO Underwriter. If the Company receives payment of the Termination Fee, the receipt of the Termination Fee will be deemed liquidated damages in a reasonable amount that will fairly compensate Sellers and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (Company for the “Purchaser Damages Election”)efforts and resources expended and opportunities foregone, and not a penalty. Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays Company’s right to receive payment of the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall will be the sole and exclusive remedyremedy of Sellers, including on account of punitive damagesthe Company and their Affiliates against Buyer, of the Seller and its Subsidiaries against Purchaser SPAC or their Affiliates or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees their respective shareholders or agents Representatives for any and all Losses that may be suffered as a result of such termination. For the avoidance of doubtbased upon, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless resulting from or arising out of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled circumstances giving rise to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii8.1(e). (c) Each , and upon payment of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.038.3 none of Buyer, andthe SPAC or any of their Affiliates or any of their shareholders or Representatives will have any further liability or obligation relating to or arising out of this Agreement, in order to obtain such payment, Purchaser any ancillary documents or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitTransaction.

Termination Fee. (a) If In the event that after the date of this Agreement and prior to the termination of this Agreement a bona fide Acquisition Proposal with respect to Seller shall have been made known to senior management of Seller or shall have been made directly to its shareholders generally or any person reasonably qualified to consummate an Acquisition Proposal shall have publicly announced (and not irrevocably withdrawn at least five (5) business days prior to the Seller Shareholders’ Meeting) an Acquisition Proposal with respect to Seller and (x) (A) thereafter this Agreement is terminated by either Buyer or Seller or Purchaser pursuant to Section 9.01(b8.1(c) without the Requisite Seller Approval having been obtained or (B) thereafter this Agreement is terminated by Buyer pursuant to Section 8.1(e), and at (y) prior to the date that is twelve (12) months after the date of such time all conditions set forth in Section 8.01 and Section 8.03 termination, Seller enters into a definitive agreement or consummates a transaction with respect to an Acquisition Proposal with respect to Seller (other than Section 8.03(dwhether or not the same Acquisition Proposal as that referred to above)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time shall, on the fifth Business Day following earlier of the date it enters into such termination either (x) to require Purchaser to definitive agreement and the date of consummation of such transaction, pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”)Buyer, by wire transfer of immediately available funds same day funds, a fee equal to $19,000,000 (the “Purchaser Fee ElectionTermination Fee”); provided, that for purposes of this Section 8.3, all references in the definition of Acquisition Proposal to “20%” shall instead refer to “50%.” (b) In the event this Agreement is terminated by Buyer pursuant to Section 8.1(e) or by Seller pursuant to Section 8.1(g), then concurrently with such termination, if terminated by Seller, or within two (y2) to irrevocably waive Seller’s right to receive business days after termination, if terminated by Buyer, Seller shall pay Buyer, by wire transfer of same day funds, the Purchaser Termination Fee Fee, and elect to pursue monetary damages available to Purchaser under the terms such termination shall not be deemed effective hereunder until payment by Seller of this Agreement such fee. (the “Purchaser Damages Election”). c) Notwithstanding anything to the contrary herein, but without limiting the right of any party to recover liabilities or damages in accordance with Section 8.2, the maximum aggregate amount of fees payable by Seller under this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant Section 8.3 shall be equal to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In in no event shall Purchaser any party be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)more than once. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (cd) Each of the parties party acknowledges that the agreements contained in this Section 9.03 8.3 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller each party would not enter into this Agreement. Accordingly; accordingly, if Purchaser or Seller, as the case may be, Seller fails to timely pay promptly the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with pursuant to this Section 9.03, 8.3 and, in order to obtain such payment, Purchaser or Seller, as the case may be, Buyer commences a suit that which results in a judgment against the other party Seller for the amounts fee set forth in this Section 9.038.3, such paying party Seller shall pay the other party Buyer its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of the fee at a rate per annum equal to the prime rate published in The Wall Street Journal on the date such payment was required to be made, plus 300 basis points. (e) The parties agree that the payment of the Termination Fee shall be the sole and exclusive remedy available to Buyer and Buyer Bank with respect to this Agreement in the event any such payment becomes due and payable and is paid, and, upon payment of the Termination Fee, Seller and Seller Bank (and Seller’s and Seller Bank’s affiliates and its and their respective directors, officers, employees, shareholders and representatives) shall have no further liability to Buyer and Buyer Bank under this Agreement; provided, however, that Seller and Seller Bank shall not be relieved or released from any liabilities or damages arising out of their willful and material breach of this Agreement; provided, further, that the aggregate amount of any damages determined by a court to be payable by Seller and Seller Bank pursuant to the foregoing proviso shall be reduced by the amount of any Termination Fee previously paid to Buyer pursuant to this Section 8.3.

Termination Fee. To compensate Sterling for entering into this Agreement, taking actions to consummate the transactions contemplated hereunder and incurring the costs and expenses related thereto and other losses and expenses, including foregoing the pursuit of other opportunities by Sterling, the Company and Sterling agree as follows: (a) If Provided that neither Sterling nor Merger Sub shall be in material breach of its obligations under this Agreement (which breach has not been cured promptly following receipt of written notice thereof by the Company specifying in reasonable detail the basis of such alleged breach), the Company shall pay to Sterling the sum of $400,000 (the "Termination Fee"), if this Agreement is terminated (i) by Seller the Company under the provisions of Section 10.1(e), (ii) by either Sterling or Purchaser pursuant the Company under the provisions of Section 10.1(f) due to Section 9.01(b) the failure of the Company's shareholders to approve and at such time all conditions set forth in Section 8.01 adopt this Agreement and Section 8.03 (other than Section 8.03(d)) shall have been satisfied orthe Merger, for those conditions intended to be satisfied if at the Closing, shall be capable time of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) failure to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee so approve and elect to pursue monetary damages available to Purchaser under the terms of adopt this Agreement (and the “Purchaser Damages Election”). Notwithstanding anything Merger there shall exist an Acquisition Proposal with respect to the contrary in Company and, within nine months of the termination of this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant Company enters into a definitive agreement with any third party with respect to any Acquisition Proposal with respect to the preceding sentence, such Purchaser Termination Fee shall be Company or (iii) by Sterling under the sole and exclusive remedy, including on account provisions of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a10.1(g). (b) If Any payment required by clauses (i) and (iii) of paragraph (a) of this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller 8.14 shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the become payable within two Business Days after termination of this Agreement pursuant Agreement. Any payment of the Termination Fee required by clause (ii) of paragraph (a) of this Section 8.14 shall become payable within two (2) Business Days of the Company's entry into the definitive agreement referred to Section 9.01(c)(ii) or Section 9.01(d)(iiin clause (ii). (c) Each of the parties The Company acknowledges that the agreements contained in this Section 9.03 8.14 are an integral part of the transactions contemplated by in this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller Sterling would not enter into this Agreement. Accordingly; accordingly, if Purchaser or Seller, as the case may be, Company fails to timely promptly pay the Seller Termination Fee or Purchaser Termination Feewhen due, as applicable, when due the Company shall in accordance with this Section 9.03, and, in order addition thereto pay to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented Sterling all costs and expenses (including reasonable and documented attorneys’ fees and expensesdisbursements of counsel) incurred in connection collecting such Termination Fee, together with interest on the amount of the Termination Fee (or any unpaid portion thereof) from the date such suitpayment was required to be made until the date such payment is received by Sterling at the prime rate as reported in The Wall Street Journal as in effect from time to time during such period.

Termination Fee. (a) If In the event that this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b9.1(a)(iv) and or Section 9.1(a)(v) or by either Party pursuant to Section 9.1(a)(ii) at such a time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall when Seller would have been satisfied orentitled to terminate this Agreement pursuant to Section 9.1(a)(iv) or Section 9.1(a)(v) (each such termination event, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfieda “Fee Trigger”), then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth within two Business Day following Days of such termination either (x) Buyer shall deliver a notice to require Purchaser the Seller that an amount equal to pay Seller, promptly following such election, a termination fee of $2,300,000 90,000,000 (the “Purchaser Termination Fee”), ) is due and payable by wire transfer Buyer to the Seller in accordance with the provisions of immediately available funds this Section 9.3 (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages ElectionNotice”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)Within five Business Days of receipt by the Seller of the Termination Fee Notice, then the Seller shall pay Purchaser $2,300,000 deliver to Buyer a written notice informing Buyer whether or not the Seller elects to accept the Termination Fee (the “Seller Fee Notice”). If the Seller does not deliver to Parent the Seller Fee Notice by the date that is five Business Days after the Seller receives the Termination Fee Notice, the Seller shall be deemed to have accepted the Termination Fee”. If the Seller elects (or is deemed to elect pursuant hereto) not later than the day of such terminationTermination Fee, Buyer shall pay or cause to be paid to the Seller the Termination Fee, by wire transfer of immediately available funds. Notwithstanding anything , within five Business Days of such acceptance (or deemed acceptance pursuant hereto), to an account specified by the contrary in this Agreement, Purchaser’s Seller to Buyer within five Business Days of receipt of the Seller Fee Notice. If the Seller does not elect (whether via an affirmative election or a deemed election) to accept the Termination Fee, then the Seller (i) irrevocably waives its entitlement to payment of the Termination Fee pursuant and (ii) shall be entitled to seek the payment of monetary damages, subject to the preceding sentence limitations set forth in Sections 9.2 and 9.3 (and, for the avoidance of doubt, nothing shall be limit the sole and exclusive remedy, including on account Seller’s post-termination rights to specific performance of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the ▇▇▇▇▇’s post-termination of obligations under this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(iiAgreement). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, Buyer fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when cause to be paid any amount actually due in accordance with pursuant to this Section 9.039.3, and, in order to obtain such the payment, Purchaser or Seller, as the case may be, Seller commences a suit that an Action which results in a judgment against the other party Buyer for the amounts payment set forth in this Section 9.039.3, such paying party the Buyer shall pay the other party its or cause to be paid to Seller reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expensesfees) in connection with such suitAction (collectively, the “Recovery Expenses”); provided, that in no event shall the Recovery Expenses exceed $2,500,000; provided, further, that if such proceeding results in a judgment in favor of the Buyer, Seller shall pay or cause to be paid to the Buyer, the Buyer’s reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such proceeding. (d) Under no circumstances shall Seller be permitted or entitled to receive more than one of (i) a grant of specific performance of this Agreement pursuant to Section 10.12 of the Buyer’s obligation to consummate the Closing and pay the Purchase Price (and that actually results in the Buyer consummating the Closing and paying the Purchase Price), (ii) payment of monetary damages in respect of Willful Breach and (iii) payment of the Termination Fee and the Recovery Expenses (if payable) in connection with the valid termination of this Agreement. (e) The Parties acknowledge and agree that (i) in no event shall the Buyer be required to pay the Termination Fee on more than one occasion, and (ii) the agreements set forth in this Section 9.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other Parties would not enter into this Agreement. (f) Notwithstanding anything to the contrary contained herein, in the event that the Seller accepts (or is deemed to accept pursuant hereto) the Termination Fee, and the Termination Fee is actually paid to the Seller, such payment of the Termination Fee shall constitute liquidated damages and, together with any Recovery Expenses, be the sole and exclusive remedy (other than any remedies pursuant to Section 10.12 in connection with provisions of this Agreement that survive the termination of this Agreement in accordance with Section 9.2(a)) of the Seller and the Seller Related Parties against Buyer and its direct or indirect equity holders, partners, directors, managers, members, Affiliates and Representatives (collectively, the “Buyer Related Parties”) and the Debt Financing Entities, for all Losses, damages, costs or expenses in respect of this Agreement (or the termination thereof) or the transactions contemplated by this Agreement or the Ancillary Agreements (or the failure of such transactions to occur for any reason or for no reason) or any breach of any covenant or agreement or otherwise in respect of this Agreement or any representation (whether oral or written) made or alleged to be made in connection herewith, and, notwithstanding anything to the contrary set forth herein (including Section 9.2), upon payment of the Termination Fee, together with any Recovery Expenses, none of the Buyer Related Parties shall have any further liability or obligation (other than any liabilities or obligations pursuant to Section 10.12 in connection with provisions of this Agreement that survive termination of this Agreement in accordance with Section 9.2(a)) relating to or arising out of this Agreement or the transactions contemplated by this Agreement or the Ancillary Agreements, and none of the Seller or any other Seller Related Party shall seek or be entitled to recover any other damages; provided, neither the foregoing nor any other provisions herein shall limit Buyer’s obligations under Section 5.5, 5.6 or 5.23 or under each Confidentiality Agreement.

Termination Fee. (a) If In the event of the termination of this Agreement is terminated by Seller or Purchaser PKI pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d7.1(f)) , Buyer shall have been satisfied or, for those conditions intended pay to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, PKI a termination fee of $2,300,000 (the “Purchaser Termination Fee”), 28,920,000. The termination fee payable pursuant to this Section 7.3(a) shall be paid by wire transfer of immediately available same-day funds (within 10 Business Days after the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14demand therefor, which shall demand may only be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay made following the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the proper termination of this Agreement pursuant to Section 9.01(c)(ii7.1(f). (b) In the event that PKI shall receive full payment pursuant to Section 7.3(a) of the amounts due thereunder, the receipt of such payment shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by PKI or any other person in connection with this Agreement (and the termination of this Agreement), the transactions contemplated this Agreement (and the abandonment thereof) or any matter forming the basis for such termination, and neither PKI nor any other person shall be entitled to bring or maintain any other claim, action or proceeding against Buyer or any of its Affiliates, any Person that has committed to arrange, syndicate, underwrite or provide Debt Financing, has entered into the Debt Commitment Letters or has otherwise entered into agreements in connection with the Debt Commitment Letters or any joinder agreements, indentures or credit agreements entered into pursuant thereto or relating thereto in connection with the transactions contemplated hereby, including each party named in Section 9.01(d)(ii3.7 together with their Affiliates, officers, directors, employees, agents and representatives involved in the Debt Financing and their successors and assigns (collectively, the “Debt Financing Source”) arising out of this Agreement, any of the transactions contemplated this Agreement or any matters forming the basis for such termination. Notwithstanding anything to the contrary, if a court of competent jurisdiction has ordered Buyer to pay a termination fee pursuant to Section 7.3(a), PKI shall not be entitled to enforce such order if (i) Buyer delivers to PKI, within five (5) Business Days following the issuance of such order, a notice electing to consummate the transactions contemplated by this Agreement in accordance Article I of this Agreement and (ii) the Closing occurs within five (5) Business Days following the delivery of such notice. (c) Each of the parties acknowledges The Parties acknowledge that the agreements contained in this Section 9.03 7.3 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller the Parties would not enter into this Agreement. AccordinglyExcept as provided in Section 7.3(b), if Purchaser or Seller, as payment of the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth fees and expenses described in this Section 9.03, such paying party 7.3 shall pay constitute the other party its reasonable sole and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) exclusive remedy of the Parties in connection with such suitany termination of this Agreement.

Termination Fee. (a) If Buyer is in Breach of this Agreement, Seller’s sole and exclusive remedy shall be to terminate this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b9.1(c) and at such time all conditions set forth receive liquidated damages from Buyer in Section 8.01 and Section 8.03 the amount of One Million Five Hundred Thousand Dollars (other than Section 8.03(d)$1,500,000) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive which amount shall reduce Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, then outstanding principal amount of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)Loan Facility. (b) If this Agreement Seller is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day in Breach of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, PurchaserBuyer’s receipt may elect to (i) compel Seller to specifically perform the terms of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedythis Agreement, including on account of punitive damages, of seeking the Purchaser Requisite Stockholder Approval and its Subsidiaries against Seller consummating the Contemplated Transactions in accordance with the terms hereof and the Transaction Documents or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of (ii) terminate this Agreement pursuant to Section 9.01(c)(ii9.1(b) or Section 9.01(d)(ii)and, if such Breach is a material Breach, receive liquidated damages from Seller in the amount equal to the Termination Fee. (c) Each In the event Buyer terminates this Agreement pursuant to Section 9.1(f) and the failure to disclose such facts and circumstances on any Disclosure Schedule previously delivered by Seller to Buyer constitutes Intentional Breach or fraud by Seller, Buyer’s sole and exclusive remedy shall be liquidated damages from Seller in an amount equal to the Termination Fee. (d) In the event either Buyer or Seller terminates this Agreement pursuant to Section 9.1(g) and Seller enters into legally binding agreements with respect to a Competitive Transaction described in clauses (i), (ii), (iii) or (iv) of the parties acknowledges that definition of such term within One Hundred Thirty Five (135) days of such termination date, Buyer’s sole and exclusive remedy shall be liquidated damages from Seller in the agreements contained in this Section 9.03 are an integral part amount of the transactions contemplated by Termination Fee. (e) Upon any termination of this Agreement, this Agreement shall be null and void and have no effect and without liability of any Party, provided however, that the amounts (provisions of Section 10 and 11 of this Agreement shall survive such termination of this Agreement, Seller will remain obligated to repay the Loan Facility and, if any) payable the reason for such termination was pursuant to Section 9.03(a9.1(b), (c), (f) or (g), the provisions of Section 9.03(b9.2(a), (b), (c) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller(d), as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain shall survive such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suittermination.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller North Fork shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such terminationGreenPoint, by wire transfer of immediately available funds. Notwithstanding anything to , the contrary in sum of $250 million (the "North Fork Termination Fee") if this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence Agreement is terminated as follows: (i) if GreenPoint shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of terminate this Agreement pursuant to Section 9.01(c)(ii8.1(g), then North Fork shall pay the North Fork Termination Fee on the business day following such termination; (ii) if (A) either party shall terminate this Agreement pursuant to Section 8.1(d) because the required North Fork stockholder approval shall not have been received and (B) at any time after the date of this Agreement and at or before the date of the North Fork Stockholders Meeting an Acquisition Transaction shall have been publicly announced or otherwise communicated to the senior management or Board of Directors of North Fork (a "Public Proposal" with respect to North Fork) that has not been withdrawn prior to such date, then North Fork shall pay one-third of the North Fork Termination Fee on the business day following such termination; and if (C) within eighteen (18) months of the date of such termination of this Agreement, North Fork or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, any Acquisition Transaction, then North Fork shall pay the remaining two-thirds of the North Fork Termination Fee upon the date of such execution or consummation; and (iii) if (A) either party shall terminate this Agreement pursuant to Section 8.1(c) or GreenPoint shall terminate this Agreement pursuant to Section 9.01(d)(ii8.1(e) or (f), (B) at any time after the date of this Agreement and before such termination there shall have been a Public Proposal with respect to North Fork that has not been withdrawn prior to such termination, and (C) following the occurrence of such Public Proposal, North Fork shall have intentionally breached (and not cured after notice thereof) any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach shall have materially contributed to the failure of the Effective Time to occur prior to the termination of this Agreement, then North Fork shall pay one-third of the North Fork Termination Fee on the business day following such termination; and (D) if within eighteen (18) months of the date of such termination of this Agreement, North Fork or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, any Acquisition Transaction, then North Fork shall pay the remaining two-thirds of the North Fork Termination Fee upon the date of such execution or consummation. If North Fork fails to pay all amounts due to GreenPoint on the dates specified, then North Fork shall pay all costs and expenses (including legal fees and expenses) incurred by GreenPoint in connection with any action or proceeding (including the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest on such unpaid amounts at the prime lending rate prevailing at such time, as published in the Wall Street Journal, from the date such amounts were required to be paid until the date actually received by GreenPoint. (b) GreenPoint shall pay North Fork, by wire transfer of immediately available funds, the sum of $250 million (the "GreenPoint Termination Fee") if this Agreement is terminated as follows: (i) if North Fork shall terminate this Agreement pursuant to Section 8.1(g), then GreenPoint shall pay the GreenPoint Termination Fee on the business day following such termination; (ii) if (A) either party shall terminate this Agreement pursuant to Section 8.1(d) because the required GreenPoint stockholder approval shall not have been received and (B) at any time after the date of this Agreement and at or before the date of the GreenPoint Stockholders Meeting there shall have been a Public Proposal with respect to GreenPoint that has not been withdrawn prior to such date, then GreenPoint shall pay one-third of the GreenPoint Termination Fee on the business day following such termination; and if (C) within eighteen (18) months of the date of such termination of this Agreement, GreenPoint or any of its Subsidiaries enters into any definitive Agreement with respect to, or consummates, any Acquisition Transaction, then GreenPoint shall pay the remaining two-thirds of the GreenPoint Termination Fee on the date of such execution or consummation; and (iii) if (A) either party shall terminate this Agreement pursuant to Section 8.1(c) or North Fork shall terminate this Agreement pursuant to Section 8.1(e) or (f), (B) at any time after the date of this Agreement and before such termination there shall have been a Public Proposal with respect to GreenPoint that has not been withdrawn prior to such termination, and (C) following the occurrence of such Public Proposal, GreenPoint shall have intentionally breached (and not cured after notice thereof) any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach shall have materially contributed to the failure of the Effective Time to occur prior to the termination of this Agreement, then GreenPoint shall pay one-third of the GreenPoint Termination Fee on the business day following such termination; and (D) if within eighteen (18) months of the date of such termination of this Agreement, GreenPoint or any of its Subsidiaries executes any definitive agreement with respect to, or consummates, any Acquisition Transaction, then GreenPoint shall pay the remaining two-thirds of the GreenPoint Termination Fee upon the date of such execution or consummation. If GreenPoint fails to pay all amounts due to North Fork on the dates specified, then GreenPoint shall pay all costs and expenses (including legal fees and expenses) incurred by North Fork in connection with any action or proceeding (including the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest on such unpaid amounts at the prime lending rate prevailing at such time, as published in the Wall Street Journal, from the date such amounts were required to be paid until the date actually received by North Fork. (c) Each of the The parties acknowledges acknowledge that the agreements contained in this Section 9.03 8.5 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather Agreement and constitute liquidated damages in and not a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebypenalty, and that, without these agreements, neither Purchaser nor Seller the parties would enter not have entered into this Agreement. Accordingly. (d) For purposes of this Agreement, if Purchaser the term "Acquisition Transaction" shall mean (i) the direct or Sellerindirect acquisition, purchase or assumption of all or a substantial portion of the assets or deposits of GreenPoint or North Fork, as the case may be, fails to timely pay (ii) the Seller Termination Fee acquisition by any person of direct or Purchaser Termination Feeindirect beneficial ownership (including by way of merger, as applicableconsolidation, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser share exchange or Sellerotherwise) of 20% or more of the outstanding shares of voting stock of GreenPoint or North Fork, as the case may be, commences or (iii) a suit that results merger, consolidation, business combination, liquidation, dissolution or similar transaction of or involving GreenPoint or North Fork, as the case may be, other than a merger, business combination or similar transaction of the party in question if (x) the shareholders of such party immediately before any such transaction own at least 60% of the voting stock of the entity surviving such transaction (or the parent thereof) immediately following such transaction, and (y) as a judgment against result of such transaction no person or group shall own or control 20% or more of the other party for voting stock of the amounts set forth in this Section 9.03, such paying party shall pay surviving entity (or parent thereof) immediately following the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.transaction. ARTICLE IX

Termination Fee. (a) If this Agreement is terminated by (i) Buyer or Seller or Purchaser pursuant to Section 9.01(b9.1(a)(iv) and at or Section 9.1(a)(v), or (ii) by Seller pursuant to Section 9.1(a)(ii) with respect to a breach of Section 7.1, and, as of the time of such time all termination, the only conditions to Closing set forth in Section 8.01 and Section 8.03 Article VIII that have not been satisfied (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended that by their nature are to be satisfied at the Closing, shall be so long as such conditions would reasonably have been capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time satisfied if the Closing were to occur on the fifth date the notice of termination is delivered) are those set forth in Section 8.1(a) or Section 8.1(b) (but in the case of Section 8.1(b), solely with respect to a Restraint or Law in respect of any Regulatory Law), then, within five Business Day Days following such termination either (x) termination, Buyer shall cause to require Purchaser be paid to pay Seller, promptly following such election, a termination fee of $2,300,000 (Seller the “Purchaser Termination Fee”), . (b) Any Termination Fee due and payable by Buyer under this Section 9.3 shall be paid by wire transfer of immediately available funds (the “Purchaser Fee Election”) to an account or (y) to irrevocably waive accounts designated in writing by Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, shall be payable by Buyer only once and not in duplication even though a termination fee may be payable by Buyer under one or more provisions hereof. (c) To the extent Buyer fails to pay (or fails to cause to be paid) to Seller the Termination Fee when due in accordance with this Section 9.039.3 and Seller initiates a Proceeding against Buyer to recover such Termination Fee, and, in order to obtain if such payment, Purchaser or Seller, as the case may be, commences a suit that Proceeding results in a judgment against the other party in favor of Seller for the amounts set forth in this Section 9.03payment of the Termination Fee, such paying party Buyer shall pay the other party its to Seller: (i) all reasonable and documented out-of-pocket costs and expenses incurred by Seller with respect to such Proceeding (including reasonable and documented attorneys’ fees and expenses) in connection with such suitthe enforcement of its rights under this Agreement) and (ii) interest on the unpaid Termination Fee from the date due under Section 9.3(a) until the date of payment at a rate of 10% per annum, accruing daily.

Termination Fee. (a) If The Parties hereby acknowledge and agree that the extent of damages to Seller or Purchaser from the termination of this Agreement by any reason would be impossible or extremely impractical to ascertain and that the amounts specified in this Section 8.3 are a fair and reasonable estimate of the damages suffered by Seller or Purchaser. In the event that the Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b8.1(c), Purchaser shall pay to Seller the amount equal to 5% of the Base Purchase Price (the “Reverse Termination Fee”) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth within two Business Day Days following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right an account specified by Seller in writing to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”)Purchaser. Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser The Reverse Termination Fee shall be the sole and exclusive remedy, including on account remedy of punitive damages, of the Seller and its Subsidiaries against Purchaser Affiliates with respect to such termination, including any Losses arising out of or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees related to the breach or agents for any and all Losses suffered as a result of breaches giving rise to such termination. For In the avoidance of doubt, if Seller makes event that the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated by Purchaser pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii8.1(b), then Seller shall pay to Purchaser $2,300,000 the amount equal to 5% of the Base Purchase Price (the “Seller Termination Fee”) not later than the day of within two Business Days following such termination, termination by wire transfer of immediately available fundsfunds to an account specified by Purchaser in writing to Seller. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller The Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account remedy of punitive damages, of the Purchaser and its Subsidiaries against Seller Affiliates with respect to such termination, including any Losses arising out of or any related to the breach or breaches giving rise to such termination; provided that Purchaser may seek specific performance and other equitable remedies in lieu of its Subsidiariesreceiving the Termination Fee. Moreover, Affiliates, stockholders, directors, officers, employees or agents for any if this Agreement is terminated and all Losses suffered as a result such termination results in payment of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Reverse Termination Fee or by Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment8.3, Purchaser or shall also reimburse Seller for any and all Remodel Costs incurred by Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If In the event that this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and 11.01(g), then at such the time all conditions set forth specified in Section 8.01 and Section 8.03 11.01(g)(i), the Company shall be obligated to pay (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended or caused to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (xpaid) to require Purchaser to pay Seller, promptly following such election, Buyer or its designee(s) a termination fee in an amount equal to the amount of Buyer Transaction Expenses, calculated as of the date of termination, which for purposes of this ARTICLE XI shall not exceed $2,300,000 10,000,000 (such amount, the “Purchaser Termination Fee”), by wire transfer of immediately available funds to an account designated by Buyer in writing (such written designation to be provided to the “Purchaser Fee Election”Company no later than two (2) or Business Days after the date on which Buyer delivers to the Company a written invoice for the Buyer Transaction Expenses (ywhich, for the avoidance of doubt, shall not be more than one (1) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”Business Day following such termination)). Any amounts paid or shares issued in connection with a termination pursuant to Section 11.01(g) in respect of the Subscriber Termination Adjustment shall be treated as an adjustment to the purchase price of the Company Convertible Preferred Shares issued pursuant to the Preferred Shares Subscription Agreement unless otherwise required by applicable Law. (b) Notwithstanding anything to the contrary set forth in this Agreement, except in the case of Fraud, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee is paid pursuant to the preceding sentenceSection 11.03(a), such Purchaser Termination Fee payment shall be constitute the sole and exclusive remedyremedy of Buyer, including on account Merger Sub I, Merger Sub II, any of punitive damages, of the Seller and its their respective Subsidiaries against Purchaser or any of its Subsidiariestheir respective former, Affiliatescurrent or future direct or indirect general or limited partners, stockholdersequityholders, directors, officers, employees managers, employees, Representatives or agents for any and all Losses suffered as a result of such termination. For assignees, on the avoidance of doubtone hand, if Seller makes against the Purchaser Fee Election and Purchaser pays the Purchaser Termination FeeCompany, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or and any of its Subsidiariestheir respective former, Affiliatescurrent or future direct or indirect general or limited partners, stockholdersequityholders, directors, officers, employees managers, employees, Representatives or agents assignees (together with the Company, collectively, the “Company Related Parties”) for any all losses and all Losses damages suffered as a result of the termination failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)the Transactions. (c) If the Company fails to pay promptly any amount due under this Section 11.03, and in order to obtain such payment, Buyer commences an Action against the Company that results in a judgment against the Company for any amount owed thereby under this Section 11.03, as applicable, the Company shall reimburse Buyer for its reasonable, documented and out-of-pocket costs and expenses (including reasonable, documented and out-of-pocket attorneys’ fees) incurred in connection with such Action, together with interest on such amount at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received, plus (ii) two percent (2%). (d) Each of the parties Parties acknowledges that (i) the agreements contained in this Section 9.03 11.03 are an integral part of the transactions contemplated by Transactions, (ii) without these agreements, the Parties would not enter into this Agreement, that (iii) the amounts provisions of this ARTICLE XI supersede the A&R LOI, and (if anyiv) payable pursuant to Section 9.03(a) or Section 9.03(b) are the Termination Fee does not constitute a penalty penalty, but rather constitute is liquidated damages in a reasonable amount that will reimburse certain expenses Buyer expended in its pursuit of an initial business combination and provide funds to allow Buyer to seek an amendment to its Certificate of Incorporation to allow additional time to consummate an initial business combination, if necessary and advisable, and compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable Buyer for the efforts and resources expended and opportunities foregone while negotiating this Agreement and Agreement, in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyTransactions, and that, without these agreements, neither Purchaser nor Seller which amount would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails otherwise be impossible to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance calculate with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitprecision.

Termination Fee. (a) If In the event that Parent, for itself and on behalf of Merger Sub and Contribution Sub, or quepasa terminates this Agreement is terminated by Seller or Purchaser pursuant to Section 9.01(b) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”8.1(d), by wire transfer of immediately available funds (the “Purchaser Fee Election”e) or (y) f), the non-terminating party to irrevocably waive Seller’s right shall be entitled to receive a fee in cash (the Purchaser Termination Fee and elect "TERMINATION FEE") in an amount equal to pursue monetary damages $500,000, payable in immediately available to Purchaser under funds, the terms next business day following the termination of this Agreement (as liquidated damages incurred by the “Purchaser Damages Election”)non-terminating party in connection with the transactions contemplated hereby. Notwithstanding anything to the contrary in this Agreementforegoing, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser no Termination Fee shall be payable to the sole and exclusive remedy, including on account of punitive damages, of non-terminating party if the Seller and its Subsidiaries against Purchaser or any terminating party was in material breach of its Subsidiariesrepresentations, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to at the time of its termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If In the event that quepasa terminates this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii8.1(g), then Seller Parent shall pay Purchaser be entitled to receive $2,300,000 500,000 plus an amount equal to the aggregate amount of fees and expenses (including all attorney's fees, accountants' fees, and financial advisory fees) incurred by Buyer in connection with the “Seller Termination Fee”) not later than the day of such terminationtransactions contemplated hereby, by wire transfer of payable in immediately available funds. Notwithstanding anything to , the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of next business day following the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)as liquidated damages incurred by Buyer in connection with the transactions contemplated hereby. (c) Each of In the parties acknowledges event that the agreements contained in quepasa terminates this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable Agreement pursuant to Section 9.03(a) or Section 9.03(b) are not 8.1(h), Parent shall be entitled to receive a penalty but rather constitute liquidated damages sum equal to the amount of its actual expenses incurred for attorneys, accountants and appraisers incurred in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating connection with this 49 Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Sellerup to a maximum of $250,000, as liquidated damages incurred by Buyer in connection with the case may be, transactions contemplated hereby. (d) If the terminating party fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with any amount payable under this Section 9.038.3, and, in order to obtain such payment, Purchaser or Seller, as then (i) the case may be, commences a suit that results in a judgment against terminating party shall reimburse the other non-terminating party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented all costs and expenses (including reasonable and documented attorneys’ fees and expensesdisbursements of counsel) incurred in connection with the collection of such suitoverdue amount and the enforcement by the non-terminating party of its rights under this Section 8.3, and (ii) the terminating party shall pay to the non-terminating party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to the non-terminating party in full) at an annual rate of 12%.

Termination Fee. (a) If In the event that this Agreement is terminated by the Seller or Purchaser Representative pursuant to Section 9.01(b8.1(d) and at or Section 8.1(e) or is otherwise terminated when terminable pursuant to Section 8.1(d) or Section 8.1(e), then Buyer shall promptly, but in no event later than two (2) Business Days after the date of such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied ortermination, for those conditions intended pay or cause to be satisfied at paid to Tiptree (in its individual capacity, and not as Seller Representative hereunder) or its designees the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either Termination Fee (xan amount equal to $10,000,000) to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 (the “Purchaser Termination Fee”), ) by wire transfer of immediately available same day funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary it being understood that in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser Buyer be required to pay the Purchaser Termination Fee if Seller has not delivered on more than one occasion). Solely for purposes of establishing the Purchaser Fee Election basis for the amount thereof, and without in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (any way increasing the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt amount of the Seller Termination Fee pursuant or expanding the circumstances in which the Termination Fee is to the preceding sentence shall be the sole and exclusive remedypaid, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges it is agreed that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are Termination Fee is not a penalty penalty, but rather constitute is liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, Sellers in the circumstances in which such termination fee the Termination Fee is payable for the efforts and resources expended and opportunities foregone opportunity forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. (b) Notwithstanding anything to the contrary in this Agreement, in the event Buyer fails to effect the Closing or otherwise breaches this Agreement or fails to perform hereunder, then, except as and only to the extent expressly permitted by Section 11.10, Sellers’ sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against the Buyer Related Parties in respect of this Agreement, any Contract executed in connection herewith (including the Equity Financing Commitment, the Limited Guaranty and the Debt Financing Commitment, but excluding the Confidentiality Agreement) and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with (and subject to the conditions of) this Article VIII and collect, if due, the Termination Fee and any reimbursement or indemnity obligations under Section 5.11(c) or Section 11.3 from Buyer or pursuant to the Limited Guaranty from Guarantors, and upon payment of such amounts in accordance with Section 5.11(c), Section 11.3 and this Section 8.3(b), except in connection with an order of specific performance as and only to the extent provided in Section 11.10, (A) no Buyer Related Party shall have any further liability or obligation relating to or arising out of this Agreement, any Contract executed in connection herewith (including the Equity Financing Commitment, the Limited Guaranty and the Debt Financing Commitment, but excluding the Confidentiality Agreement) or any of the transactions contemplated hereby or thereby, (B) neither Sellers nor any other Seller Related Party shall be entitled to bring or maintain any claim, action, proceeding or other Litigation against Buyer or any other Buyer Related Party arising out of or in connection with this Agreement, any Contract executed in connection herewith (including the Equity Financing Commitment, the Limited Guaranty and the Debt Financing Commitment, but excluding the Confidentiality Agreement) or any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination, and (C) Sellers and the Seller Representative shall use their reasonable best efforts to cause any claim, action, proceeding or other Litigation pending in connection with this Agreement, any Contract executed in connection herewith (including the Equity Financing Commitment, the Limited Guaranty and the Debt Financing Commitment, but excluding the Confidentiality Agreement) or any of the transactions contemplated hereby or thereby, to the extent maintained by Sellers or another Seller Related Party against Buyer or any other Buyer Related Party, to be dismissed with prejudice promptly following the payment of any such amounts. For the avoidance of doubt, (x) under no circumstances shall Sellers (directly or through the Seller Representative) be entitled to collect the Termination Fee on more than one occasion and (y) under no circumstances shall Sellers (directly or through the Seller Representative) be permitted or entitled to receive both a grant of specific performance of the obligation to close contemplated by Section 11.10 that results in the Closing occurring and any money damages, including the Termination Fee. In connection with any loss suffered as a result of any breach of any representation, covenant or agreement in this Agreement or the failure of the Closing to be consummated, or in respect of any oral representation made or alleged to have been made in connection herewith, in each case, other than in a circumstance in which the Seller Representative is permitted to terminate this Agreement and cause Tiptree or its designee to receive the Termination Fee pursuant to this Section 8.3 or any reimbursement or indemnity obligations under Section 5.11(c), Section 11.3 or the Limited Guaranty, Sellers agrees that the maximum aggregate liability of Buyer shall be limited to an amount equal to the amount of the Termination Fee plus any reimbursement or indemnity obligations under Section 5.11(c), Section 11.3 and the Limited Guaranty, and in no event shall Sellers (directly or through the Seller Representative) seek to recover any money damages in excess of such amount. In no event shall Sellers (directly or through the Seller Representative) seek equitable relief or to recover monetary damages from any Buyer Related Party in connection with the transactions contemplated by this Agreement other than (i) Buyer pursuant to (and subject to the conditions of) this Agreement and (ii) monetary damages from Guarantors pursuant to (and subject to the conditions of) the Limited Guaranty. (c) The parties acknowledge that the agreements contained in this Section are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither Purchaser nor Seller the parties would not enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a). (a) If Purchaser shall promptly, and in any event within two (2) Business Days, pay to Seller $2,000,000 (the “Termination Fee”) in cash in the event that this Agreement is terminated by by: (1) Seller pursuant to Section 11.1(e); (2) Seller or Purchaser pursuant to Section 9.01(b11.1(b)(i) (if the failure to obtain any Regulatory Approval was attributable to the failure of Purchaser to obtain sufficient financing to satisfy applicable regulatory capital requirements and not to the imposition of a Burdensome Condition or other action of the Governmental Entity unrelated to the absence of Acceptable Financing and at such time all Purchaser has not obtained the Acceptable Financing); or (3) Seller or Purchaser pursuant to Section 11.1(c) (if at such time Purchaser has not obtained the Acceptable Financing and the only conditions set forth in to closing not then satisfied are Section 8.01 and Section 8.03 10.1(b) (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended if the failure to be satisfied at obtain any Regulatory Approval was attributable to the Closing, shall be capable failure of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay Seller, promptly following such election, obtain sufficient financing to satisfy applicable regulatory capital requirements and not to the imposition of a termination fee Burdensome Condition or other action of $2,300,000 (the “Purchaser Termination Fee”), by wire transfer Governmental Entity unrelated to the absence of immediately available funds (the “Purchaser Fee Election”Acceptable Financing) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”Section 10.3(e). Notwithstanding anything to the contrary ); it being understood that in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered the Purchaser Fee Election in accordance with this Section 9.03(a)on more than one (1) occasion. (b) If In light of the difficulty of accurately determining actual damages with respect to a termination of this Agreement is terminated pursuant to under Section 9.01(c)(ii) or Section 9.01(d)(ii11.1(b), then Section 11.1(c) and Section 11.1(e), the payment of the Termination Fee in accordance with Section 11.2, which constitutes a reasonable estimate of the monetary damages that will be suffered by Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day by reason of any such termination, by wire transfer termination of immediately available funds. Notwithstanding anything to the contrary in this Agreement, shall be in full and complete satisfaction of any and all monetary damages of any of Purchaser’s receipt , any of its Affiliates, any financing source or any of their respective past, present or future directors, officers, employees, incorporators, members, managers, partners, shareholders, parents, agents, attorneys or representatives (each a “Purchaser Related Party”), arising out of or related to this Agreement and the Seller Termination Fee pursuant to the preceding sentence transactions contemplated hereby, and shall be the sole and exclusive remedyremedy of Seller and any of its Affiliates, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiariesor their past, Affiliates, stockholders, present or future directors, officers, employees employees, incorporators, members, managers, partners, shareholders, parents, agents, attorneys or agents for representatives (each, a “Seller Related Party”) against Purchaser or any Purchaser Related Party relating thereto, and all Losses suffered as a result upon payment of the Termination Fee, none of Purchaser or any Purchaser Related Party shall have any further liability or obligation to Seller or any Seller Related Party relating to or arising out of this Agreement or the transactions contemplated hereby or any claims or actions under Applicable Law arising out of any such breach or termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii)Agreement. (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If this Agreement is validly terminated by Seller the Company pursuant to (A) Section 8.1(g), (B) Section 8.1(c), or Purchaser (C) Section 8.1(e) and at the time of such termination pursuant to Section 9.01(b8.1(e) and at such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) shall have been satisfied or, for those conditions intended the Company had the right to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either validly terminate this Agreement pursuant to (x) Section 8.1(c), or (y) Section 8.1(g), then Purchaser will pay the Company an amount equal to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 46,666,667 (the “Purchaser Termination Fee”), ) by wire transfer of immediately available funds within three (3) Business Days after the date of such termination. Without limiting the Company’s right to obtain an award of specific performance permitted by, and subject to, Section 10.16, including the limitations set forth in Section 10.16, solely for purposes of establishing the basis of the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is payable, it is agreed by the parties hereto that the Termination Fee is a liquidated damage, and not a penalty. If, in order to obtain the Termination Fee, the Company commences a Claim that results in a final judgment (and following the expiration of all times for appellate review) in favor of the Company or its Affiliates for the payment of the Termination Fee, Purchaser shall pay (x) to the Company its out-of-pocket fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Claim (the “Purchaser Termination Fee ElectionClaim Expenses”) or and (y) to irrevocably waive Seller’s right the Company the Termination Fee, plus interest at the prime rate of interest reported in The Wall Street Journal in effect on the date such payment was required to receive be made hereunder through the Purchaser date of payment (such interest payment, together with the Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (Claim Expenses, the “Purchaser Damages ElectionEnforcement Costs”). Notwithstanding anything to the contrary set forth herein, but subject in this Agreementall respects to the provisions of Section 10.16(b), if Seller makes the Purchaser Fee ElectionSellers and the Company may pursue the remedies permitted pursuant to Section 10.16 at any time, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled election to pursue monetary damages for only those Losses incurred such remedies shall in no way modify or suffered by Seller that were amend the result obligations of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required to pay the Purchaser Termination Fee if Seller has not delivered and/or the Purchaser Fee Election in accordance with Enforcement Costs pursuant to this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding 8.4; provided that notwithstanding anything to the contrary herein or otherwise, in this Agreement, Purchaser’s receipt of no event shall the Seller Termination Fee Enforcement Costs payable pursuant to this Section 8.4 exceed $1,500,000 in the preceding sentence shall be the sole aggregate. Purchaser acknowledge and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges agree that the agreements contained in this Section 9.03 8.4 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, in the circumstances in which such termination fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, and that, that without these agreements, neither Purchaser nor Seller the Company and the Sellers would enter not have entered into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.

Termination Fee. (a) If this Agreement is terminated by Seller or Purchaser pursuant all of the conditions to Section 9.01(b) the Parent’s, Buyer’s and at such time all conditions set forth in Section 8.01 and Section 8.03 Merger Sub’s obligations to consummate the Closing under Article 8 have been satisfied (other than Section 8.03(d)) shall have been satisfied orany such conditions which by their nature are to be, for those conditions intended to be and would be, satisfied at the Closing) and Parent, shall be capable of being satisfiedBuyer and Merger Subsidiary refuse to effect the Closing, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following Company may terminate this Agreement and the parties agree that upon such termination either (x) the Company shall have suffered a loss and value to require Purchaser the Company of an incalculable nature and amount, unrecoverable in law, and Buyer shall pay to pay Seller, promptly following such election, the Company a termination fee of $2,300,000 1,000,000 (the “Purchaser Termination Fee”), by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive as liquidated damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for any breach of this Agreement (regardless of the time of breach). If Seller makes the Purchaser Damages Election, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller it being understood that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than Section 5.14, which shall be subject to claims for breach without regard to materiality) prior to termination. In in no event shall Purchaser Buyer be required to pay the Purchaser Termination Fee if Seller has not delivered on more than one occasion. The Termination Fee shall be payable in immediately available funds by wire transfer to the Purchaser Fee Election in accordance with this Section 9.03(a)Company no later than three Business Days after such termination. (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii(i) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of Buyer terminates this Agreement pursuant to Section 9.01(c)(ii7.1(g), (ii) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in Company terminates this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable Agreement pursuant to Section 9.03(a7.1(h) or Section 9.03(b(iii) are this Agreement is terminated following the completion of a Shareholder Vote at which the Merger was not a penalty but rather constitute liquidated damages approved in a reasonable amount that will compensate Purchaser or Seller, as applicableaccordance with the WBCA and, in the circumstances case of this clause (iii), a Third-Party Acquisition Proposal had been disclosed at the time of such Shareholder Vote and the Company consummates a Third-Party Acquisition Proposal within 12 months following the date of such termination, then the Company shall pay to Buyer the Termination Fee, it being understood that in which such no event shall Buyer be required to pay the Termination Fee on more than one occasion. The Termination Fee shall be payable in immediately available funds by wire transfer to Buyer (A) no later than three Business Days after termination, in the case of termination fee is payable for by Buyer pursuant to Section 7.1(g), (B) concurrently with termination, in the efforts case of termination by the Company pursuant to Section 7.1(h) and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on (C) at the expectation time of the consummation of the transactions contemplated hereby, and that, without these agreements, neither Purchaser nor Seller would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suitThird-Party Acquisition Proposal.

Termination Fee. (a) If this Agreement is validly terminated (i) by the Seller in accordance with Section 10.01(c) or Section 10.01(e), or (ii) by Purchaser pursuant to Section 9.01(b10.01(a) and at a time when this Agreement is terminable by the Seller pursuant to Section 10.01(c) or Section 10.01(e) then promptly, but in any event within five (5) Business Days after the date of such time all conditions set forth in Section 8.01 and Section 8.03 (other than Section 8.03(d)) termination, the Purchaser shall have been satisfied or, for those conditions intended pay or cause to be satisfied at paid to the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) an amount in cash equal to require Purchaser to pay Seller, promptly following such election, a termination fee of $2,300,000 32,500,000 (the “Purchaser Termination Fee”), ) by wire transfer of immediately available funds (the “Purchaser Fee Election”) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary bank account designated by Seller in this Agreement, if Seller makes the Purchaser Fee Election, and Purchaser pays the Purchaser Termination Fee pursuant to the preceding sentence, such Purchaser Termination Fee shall be the sole and exclusive remedy, including on account of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such terminationadvance. For the avoidance of doubt, if in the event the Seller makes or the Purchaser Fee Election and Purchaser pays Company or any Person claiming by or through them commences an Action for payment of the Purchaser Termination Fee, in no event shall either Party be responsible for the out-of-pocket costs and expenses (including attorneys’ fees) of the other Party or its Affiliates in connection with such Action. Notwithstanding the foregoing, if the Purchaser fails to promptly pay the Termination Fee in full if and when due pursuant to this Section 10.03(a), interest on the amount of such Termination Fee shall accrue at the prime rate as published by the Wall Street Journal, Eastern Edition (or if such rate is no longer available on such publication, any comparable rate on a comparable replacement source), in effect on the date such payment was required to be made through the date of payment. (b) Subject to the provisos of this sentence (and related provisions thereto) and other than (x) the Seller’s and the Company’s rights under, including in connection with the Seller’s and the Company’s enforcement of, the Confidentiality Agreement, (y) the Seller’s and the Company’s right to enforce the payment of the Reimbursement Obligations, and (z) any remedy available to Seller expressly provided for in Section 11.10 or under the Equity Commitment Letter prior to the valid termination of this Agreement, the right to receive the Termination Fee and any interest accrued thereon in accordance with Section 10.03(a), in each case if and when due pursuant to Section 10.03(a) and the Guarantee shall be the sole and exclusive remedy of the Seller, the Company and their respective Affiliates or any Person claiming by or through any of them against the Purchaser Related Parties or any Debt Financing Sources for any and all losses suffered or incurred by any of the foregoing Persons arising out of, relating to or in connection with this Agreement, any agreement or certificate delivered pursuant to this Agreement and the Transactions (including the failure of the Closing to occur and the abandonment or termination of this Agreement and the Transactions), or any other matter forming the basis for such termination, and none of the Seller, the Company or any of their respective Affiliates shall bring or permit any Person claiming by or through any of them to bring any Action filed with or brought in (as applicable) any court of competent jurisdiction against any Purchaser Related Party or Debt Financing Source arising out of, relating to or in connection with this Agreement, any agreement or certificate delivered pursuant to this Agreement, and the Transactions (including the failure of the Closing to occur and the abandonment or termination of this Agreement and the Transactions) or any representations, covenants or agreements made or alleged to be made in connection herewith or therewith, it being understood by the Parties that no Person shall have any rights or claims against any Purchaser Related Party or Debt Financing Source arising out of, relating to, or in connection with this Agreement, any agreement or certificate delivered pursuant to this Agreement, and the Transactions (or the abandonment or termination thereof), or in respect of any representations, covenants or agreements made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise, or any matter forming the basis for such termination (whether willfully, intentionally, unintentionally or otherwise), and none of the Purchaser Related Parties or Debt Financing Sources shall have any further liability or obligation arising out of, relating to or in connection with this Agreement, any agreement or certificate delivered pursuant to this Agreement and the Transactions (or the abandonment or termination thereof) or in respect of any representations, covenants or agreements made or alleged to be made in connection herewith or therewith. Notwithstanding anything herein to the contrary, in no event shall the Seller, the Company or their respective Affiliates be entitled to seek or obtain any recovery or judgment or monetary damages against any of the Purchaser Related Parties or the Debt Financing Sources or any of their respective assets, other liability than payment of the Termination Fee and any interest accrued thereon in accordance with Section 10.03(a) against the Purchaser, in each case if and when due pursuant to Section 10.03(a) (other than for Fraud in the event that the Termination Fee is not paid when due in accordance with Section 10.03(a)), and in no event shall the Seller, the Company or their respective Affiliates be entitled to seek or obtain any other damages of any kind against any of the Purchaser Related Parties or Debt Financing Sources, including with respect to this Agreement or the Transactions, any breach of this Agreement (regardless by the Purchaser, the termination of this Agreement, the failure to consummate the Transactions or any claims or actions under applicable Law arising out of any such breach, termination or failure; provided, however, that the foregoing shall not limit the right of the time Seller or the Company to seek specific performance of breach). If Seller makes this Agreement pursuant to, and subject to the Purchaser Damages Electionlimitations in, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than including Section 5.14, which shall be subject to claims for breach without regard to materiality10.03(d) and Section 11.10) prior to termination. In the termination of this Agreement or limit any claim by Seller for Fraud in the event that the Termination Fee is not paid when due in accordance with Section 10.03(a). (c) The Parties acknowledge and agree that (i) in no event shall Purchaser be required to pay (a) the Purchaser Termination Fee if Seller has not delivered on more than one occasion or (b) any monetary damages other than the Purchaser Termination Fee Election and any interest accrued thereon in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii10.03(a), then Seller shall pay Purchaser $2,300,000 in each case if and when due in accordance with Section 10.03(a) (other than for Fraud in the “Seller event that the Termination Fee”Fee is not paid when due in accordance with Section 10.03(a)) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt and (ii) any payment of the Seller Termination Fee pursuant to the preceding sentence shall be the sole and exclusive remedy, including on account of punitive damages, of the Purchaser and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to interest accrued thereon in accordance with Section 9.01(c)(ii10.03(a) or Section 9.01(d)(ii). (c) Each of the parties acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are is not a penalty but rather constitute is liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, the Seller and the Company in the circumstances in which such termination fee is fees are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated herebyTransactions, which amount would otherwise be impossible to calculate with precision. (d) Notwithstanding anything to the contrary set forth herein, while the Seller and/or the Company may seek specific performance pursuant to, and subject to the provisions Section 11.10, and the payment of the Termination Fee and any interest accrued thereon in accordance with Section 10.03(a), in each case, if and when due in accordance with Section 10.03(a), under no circumstances shall it be permitted or entitled to receive both (i) a grant of specific performance to cause the Closing to occur, on the one hand, and (ii) payment of the Termination Fee or any monetary damages, on the other hand. (e) Each of the Parties acknowledges that the agreements contained in this Section 10.03 are an integral part of the Transactions and that, without these agreements, neither Purchaser nor Seller the Parties would not enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with The Debt Financing Sources shall be intended third party beneficiaries of this Section 9.0310.03, and, in order to obtain such payment, Purchaser or Seller, as each of whom may enforce the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in provisions of this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses 10.03 (including reasonable and documented attorneys’ fees and expenses) in connection with such suitsubject to Section 11.10).

Termination Fee. (a) If In the event that this Agreement is terminated by Seller or Purchaser Sellers pursuant to Section 9.01(b8.1(e) and at such time all conditions set forth in or Section 8.01 and Section 8.03 (other than Section 8.03(d8.1(f)) shall have been satisfied or, for those conditions intended to be satisfied at the Closing, shall be capable of being satisfied, then Seller shall irrevocably elect no later than 5:00 p.m. Eastern Time on the fifth Business Day following such termination either (x) to require Purchaser to pay SellerBuyer shall, promptly following and in any event within two (2) Business Days of such electiontermination, pay to Sellers a non-refundable termination fee fee, without offset or reduction of $2,300,000 any kind, in an amount equal to four percent (4%) of the Purchase Price (the “Purchaser Termination Fee”), . Any Termination Fee payable pursuant to this Section 8.3(a) shall be paid by wire transfer of immediately available funds to the accounts specified by Sellers in writing to Buyer. (the “Purchaser Fee Election”b) or (y) to irrevocably waive Seller’s right to receive the Purchaser Termination Fee and elect to pursue monetary damages available to Purchaser under the terms of this Agreement (the “Purchaser Damages Election”). Notwithstanding anything to the contrary in this Agreement, if Seller makes in the Purchaser Fee Election, and Purchaser pays event that the Purchaser Termination Fee is paid pursuant to the preceding sentenceSection 8.3(a), such Purchaser Termination Fee Buyer shall be the sole and exclusive remedy, including on account not have any Liability of punitive damages, of the Seller and its Subsidiaries against Purchaser or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of such termination. For the avoidance of doubt, if Seller makes the Purchaser Fee Election and Purchaser pays the Purchaser Termination Fee, Purchaser shall have no other liability for nature whatsoever to Sellers with respect to any breach of this Agreement (regardless or the failure of the time of breach). If Seller makes the Purchaser Damages ElectionClosing to occur, then Seller shall be entitled to pursue monetary damages for only those Losses incurred or suffered by Seller that were the result of fraud or material breach by the Purchaser of its representations and warranties or covenants under this Agreement (other than the liability of Buyer to pay (i) the Termination Fee in accordance with Section 5.148.3(a) and (ii) any amounts payable under Section 5.26(b) and this Section 8.3(b); provided, which shall be subject to claims for breach without regard to materiality) prior to termination. In no event shall Purchaser be required however, that, if Buyer fails to pay the Purchaser Termination Fee if Seller has not delivered when due, (A) Buyer shall additionally pay to Sellers interest on the Purchaser Fee Election in accordance with this Section 9.03(a). (b) If this Agreement is terminated pursuant to Section 9.01(c)(ii) or Section 9.01(d)(ii), then Seller shall pay Purchaser $2,300,000 (the “Seller Termination Fee”) not later than the day of such termination, by wire transfer of immediately available funds. Notwithstanding anything to the contrary in this Agreement, Purchaser’s receipt amount of the Seller Termination Fee pursuant from the date such payment was required to be made until the preceding sentence date of payment at 10% per annum and (B) if, in order to obtain such payment, Sellers commences a suit that results in a judgment against Buyer, Buyer shall be the sole reimburse Sellers for their costs and exclusive remedy, expenses (including on account of punitive damages, of the Purchaser reasonable attorneys’ fees and its Subsidiaries against Seller or any of its Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents for any and all Losses suffered as a result of the termination of this Agreement pursuant to Section 9.01(c)(iiexpenses) or Section 9.01(d)(ii)incurred in connection with such suit. (c) Each of the parties acknowledges The Parties hereto acknowledge and agree that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement, that the amounts (if any) payable pursuant to Section 9.03(a) or Section 9.03(b) are Termination Fee is not a penalty penalty, but rather constitute is liquidated damages in a reasonable amount that will compensate Purchaser or Seller, as applicable, Sellers in the circumstances in which such termination fee the Termination Fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be uncertain and incapable of accurate determination. (d) The parties hereto acknowledge and agree that the agreements contained in Section 8.2 and this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, neither Purchaser Buyer nor Seller Sellers would enter into this Agreement. Accordingly, if Purchaser or Seller, as the case may be, fails to timely pay the Seller Termination Fee or Purchaser Termination Fee, as applicable, when due in accordance with this Section 9.03, and, in order to obtain such payment, Purchaser or Seller, as the case may be, commences a suit that results in a judgment against the other party for the amounts set forth in this Section 9.03, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) in connection with such suit.