Common use of Termination Fee Clause in Contracts

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) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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.

Termination Fee. 3.1 (a) If the Merger this Agreement is not consummated and the Parent Termination Fee becomes payable terminated by Parent Seller or Purchaser pursuant to Section 8.06(b9.01(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 Merger Agreementfifth Business Day following such termination either (x) to require Purchaser to pay Seller, and any party hereto is promptly following such election, a Defaulting Party termination fee of $2,300,000 (as defined belowthe “Purchaser Termination Fee”), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund within one immediately available funds (1the “Purchaser Fee Election”) Business Day following or (y) to irrevocably waive Seller’s right to receive the termination 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 Merger Agreement pursuant to Section 8.03(a) Seller and its Subsidiaries against Purchaser or Section 8.03(b) thereof; (b) in the event 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 Company’s fees avoidance of doubt, if Seller makes the Purchaser Fee Election and expenses Purchaser pays the Purchaser Termination Fee, Purchaser shall become payable 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 Parent 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 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”9.03(a). 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.

Termination Fee. 3.1 If Notwithstanding Section 9.3 above, in the Merger event that there is not consummated and a termination of this Agreement by the Parent Termination Fee becomes payable by Parent Purchaser pursuant to Section 8.06(b9.1(e) of the Merger Agreement, and any party hereto is a Defaulting Party (as defined belowor Section 9.1(f), notwithstanding anything provided under the Limited Guaranties, (a) Company shall pay to the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount Purchaser a termination fee equal to the Parent Expenses actually incurred by or on behalf of 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 “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 Parent 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 same day fund immediately available funds to an account designated in writing by the Purchaser, or by the Company, within one ten (110) Business Day following Days after the termination notifying Party delivers to the other Party the amount of such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the Merger Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) contrary 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 this Agreement, the Defaulting Party shall be responsible for all such fees Parties expressly acknowledge and expenses payable by Parent; and (c) agree that, with respect to any termination of this Agreement in circumstances where the event that a Non-Defaulting Party’s (or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due and Termination Fee is payable, the Defaulting payment of the Termination Fee shall, in light of the difficulty of accurately determining actual damages, constitute liquidated damages with respect to any claim for damages or any other claim which the Purchaser, or the Company and the Sellers, as the case may be, would otherwise be entitled to assert against the other 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 transactions contemplated hereby and shall indemnify such Non-Defaulting constitute the sole and exclusive remedy available to the notifying Party (or Parties), provided, that the respective Guarantor) in full for all payments made by, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting foregoing shall not limit the rights of the notifying Party (or the respective GuarantorParties) under such Limited Guarantee (the obligations to seek specific performance or other injunctive relief in lieu of the Defaulting Party under terminating this Section 3.1, collectively, the “Default Obligations”). 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 PartiesAgreement.

Termination Fee. 3.1 If In the Merger is not consummated and event of the Parent Termination Fee becomes payable termination of this Agreement by the Company pursuant to Sections 11.1(e) if such material violation or breach by Parent was willful or intentional, SKT shall have the right either (i) to be paid, or to direct payment to a designee, a termination fee of $10,000,000 (the “Termination Fee”), or (ii) to exercise its rights to seek specific performance pursuant to Section 8.06(b) of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided 13.12. Any Termination Fee due under the Limited Guaranties, (a) the Defaulting Party first sentence of this Section 11.3 shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal paid to the Parent Termination Fee to Parent SKT by wire transfer of same same-day fund funds within one two (12) Business Day business days following SKT’s providing notice to Parent of its election to receive the Termination Fee (the “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 the Termination Fee is paid to SKT or its designee, then the Company’s termination of this Agreement and receipt of payment of the Merger Termination Fee by SKT or its designee shall be the sole and exclusive remedy against Parent, Virgin Opco and any of their respective Representatives, Affiliates, directors, officers, employees, partners, managers, members, or stockholders (each, a “Buyer Party”) for any Damages suffered as a result of the breach of this Agreement pursuant or any representation, warranty, covenant or agreement contained herein by Parent or Virgin Opco or the failure of the Exchange to Section 8.03(a) be consummated or Section 8.03(b) thereof; otherwise in connection with this Agreement or the transactions contemplated hereby (b) such Damages, 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 any of 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’s fees , its Affiliates and expenses shall become payable by Parent in accordance with Section 8.06(d) of the Merger Agreement, the Defaulting Party its Subsidiaries shall be responsible for all such fees and expenses payable by Parent; and (c) precluded from any other remedy against any Buyer Party at law or in equity or otherwise. For the avoidance of doubt, in the event that a Non-Defaulting Party’s (SKT delivers the Termination Fee Notice to Parent and the Termination Fee is paid to SKT or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due and payableits designee, the Defaulting Party shall indemnify such Non-Defaulting Party (or the respective Guarantor) in full maximum aggregate liability of all Buyer Parties 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party Company Damages shall be responsible for its Pro Rata Portion of limited to 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 PartiesTermination Fee.

Termination Fee. 3.1 If In the Merger event that (a) each of the closing conditions set forth in each of Section 6.1 and Section 6.3 have been satisfied and (b) the closing conditions set forth in Section 6.2 have been satisfied or 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, 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 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 (which shall occur automatically on such fifth Business Day unless agreed to otherwise by the Parties in writing) Purchaser shall pay, or cause to be paid, in same day funds to Seller $10,000,000 (the “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 its Affiliates, Xxxxxxx Poster, Xxxxxx Breitling or any of their respective agents, representatives and counsel for Purchaser’s failure to consummate the transactions contemplated by this Agreement. The obligation of Purchaser to pay the Termination Fee pursuant to this Section 5.20 shall be guaranteed by Xxxxxxx Poster and Xxxxxx Breitling pursuant to the Guaranty. Subject to the occurrence of the matters set forth in subsection (a) and subsection (b) of the first sentence of this Section 5.20, the 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 the Parent Termination Fee becomes payable by Parent pursuant to Section 8.06(b(ii) of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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) Seller’s actual damages in the event any the sale of the CompanyShares to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser’s fees failure to close would be difficult or impractical to determine, and expenses shall become payable by Parent in accordance with Section 8.06(d) the Termination Fee represents a reasonable estimate of the Merger Agreement, the Defaulting Party shall harm likely to be responsible for all such fees and expenses payable suffered by Parent; and (c) Seller 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 obligations sale of the Defaulting Party under Shares to Purchaser as contemplated by this Section 3.1, collectively, the “Default Obligations”). If there Agreement is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion not consummated as a result of the Default Obligations. A Defaulting PartyPurchaser’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 Partiesfailure to close.

Termination Fee. 3.1 If In the Merger is not consummated and the Parent Termination Fee becomes payable by Parent event of a termination of this Agreement pursuant to Section 8.06(b9.01(a) of (if and only if terminated at a time when the Merger Agreement, Equity Offering has not been completed) or Section 9.01(c) (if and any party hereto is only if terminated at a Defaulting Party (as defined belowtime when the Equity Offering has not been completed), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party Buyer shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent and/or Sellers, by wire transfer way of same day fund compensation, a fee of $1,000,000 (collectively, the “Termination Fee”), in each case, within one (1) Business Day following after the date of the termination of the Merger this Agreement by Sellers pursuant to Section 8.03(a9.01(a) or Section 8.03(b9.01(c) thereof; (b) and, in the event of a termination by Buyer pursuant to Section 9.01(a), concurrently with, and as a condition precedent to, the termination of this Agreement, by wire transfer of immediately available funds to an account designated in writing by Parent and/or Sellers; provided that Buyer shall not be required to pay the Termination Fee on more than one occasion. Buyer acknowledges that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Sellers would not enter into this Agreement. Accordingly, if Buyer fails promptly to pay any amount due pursuant to this Section 9.03, Buyer shall also pay any reasonable and documented costs, fees and expenses incurred by Parent and/or Sellers (including reasonable attorneys’ fees) in connection with a legal action to enforce this Agreement that results in a judgment for such amount or any portion thereof against Buyer or its Affiliates. Any amount not paid when due pursuant to this Section 9.03 shall bear interest from the date such amount is due until the date paid at a rate equal to LIBOR plus 8%. Notwithstanding anything to the contrary in this Agreement, except in the event of (i) an intentional breach by Buyer of any representation, warranty, covenant, or agreement in this Agreement or (ii) Buyer’s Fraud, if this Agreement is terminated in circumstances requiring the payment of the Termination Fee to Parent and/or Sellers, the payment in full of the Termination Fee by Buyer to Parent and/or Sellers, together with any interest, costs, fees or expenses payable, in each case in accordance with this Section 9.03, shall be the sole and exclusive remedy of Parent and Sellers against Buyer and its Affiliates, and upon such payment, except in the event of such an intentional breach or Fraud, none of Buyer or any of its Affiliates shall have any further liability or obligation (whether at Law or equity, in contract, in tort or otherwise) to Parent and Sellers arising out of this Agreement, any Ancillary Agreement or any of the Company’s fees transactions contemplated hereby or thereby. The Parties acknowledge and expenses shall become payable by Parent agree that (i) the agreements contained in accordance with this Section 8.06(d) 9.03 are an integral part of the Merger transactions contemplated by this Agreement, ; (ii) the Defaulting Party shall be responsible for all such fees damages resulting from the termination of this Agreement under circumstances where the Termination Fee is payable are uncertain and expenses payable by Parentincapable of accurate calculation; and (ciii) without these agreements, the Parties would not enter into this Agreement. Therefore, the Termination Fee, if, as and when required to be paid pursuant to this Section 9.03 will not constitute a penalty but rather liquidated damages in a reasonable amount that will compensate Parent and Sellers receiving such amount in the event that a Non-Defaulting Party’s (or circumstances in which it is payable for the respective Guarantor’s) liabilities under efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on 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 obligations expectation of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion consummation of the Default Obligations. A Defaulting Party’s “Pro Rata Portion” for transactions contemplated by this Agreement; provided that payment of the purposes Termination Fee shall not constitute liquidated damages in the case of Fraud or an intentional breach 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 PartiesAgreement.

Termination Fee. 3.1 If Notwithstanding Section 11.3 above, in the Merger event that there is not consummated a valid and the Parent Termination Fee becomes payable effective termination of this Agreement by Parent Purchaser pursuant to Section 8.06(b) 11.1(e), (other than as a result of any breach of Section 8.8, 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 Merger AgreementCompany shall pay to Purchaser 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 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 party hereto is a Defaulting Party PIPE Investment (as defined belowsuch aggregate amount, the “Termination Fee”), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party . The Termination Fee shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent paid by wire transfer of same day fund immediately available funds to an account designated in writing by Purchaser following such termination of this Agreement and within one five (15) Business Day following Days after Purchaser delivers to the Company the amount of such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that, with respect to any termination of this Agreement in circumstances where the Termination Fee is payable, the payment of the Termination Fee shall, in light of the difficulty of accurately determining actual damages, 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 or any of their respective Affiliates or any of their respective assets, or against any of their respective directors, officers, employees or shareholders with respect to this Agreement pursuant and the Transactions and shall constitute the sole and exclusive remedy available to Section 8.03(aPurchaser, provided, that the foregoing shall not limit the rights of Purchaser to seek specific performance or other injunctive relief to consummate the Transactions in lieu of (and not in addition to) or Section 8.03(b) thereof; (b) of terminating this Agreement. For the avoidance of doubt, in the event any this Agreement is terminated as a result of a breach of the Companycovenants 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 shall limit or otherwise prejudice Purchaser’s fees and expenses shall become payable by Parent right to pursue any other remedies which Purchaser may have at law or in accordance with Section 8.06(d) of the Merger Agreementequity including, but not limited to, 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Partiesright to seek monetary damages.

Termination Fee. 3.1 If Prior to the Merger is not consummated and the Parent Termination Fee becomes payable by Parent termination of this Agreement pursuant to Section 8.06(b) of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below4.4(a)(iii), notwithstanding anything provided under the Limited GuarantiesSellers’ Parent shall pay, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) or cause Sellers to pay, to Entel an aggregate termination fee of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent $48,000,000 by wire transfer of same day fund immediately available funds to an account designated in writing to the Sellers’ Parent by Entel within one (1) two Business Day following Days of the delivery of the termination notice. This termination fee is liquidated damages for any and all Losses suffered or incurred by the Purchasers, and none of Purchasers or any of their respective Affiliates shall be entitled to bring or maintain any further claim, action or proceeding against the Merger Agreement Sellers, the Sellers’ Parent or any of their respective Affiliates arising out of such matters. The Sellers’ Parent or Sellers as the designated payee shall be entitled to, without duplication, deduct and withhold from any amount otherwise payable to the Purchasers pursuant to this Section 8.03(a) 4.5 such amounts as the Sellers’ Parent or Section 8.03(b) thereof; (b) in Sellers as the event designated payee are required to deduct or withhold with respect to the making of such payment under applicable Tax Law. The Sellers’ Parent shall use commercially reasonable efforts to give the Purchasers notice of any withholding at least two Business Days prior to the date of the Company’s fees and expenses shall become payable by Parent in accordance payment together with Section 8.06(d) of the Merger Agreementcopies all Tax Returns or similar documents relating directly to such withholding. Within 15 days following payment, the Defaulting Party Sellers’ Parent shall deliver to the Purchasers receipts evidencing such payment to the extent such receipts are received from the applicable Taxing Authority or, to the extent no such receipts are received, other reasonable, written evidence of payment. If the Sellers’ Parent so deducts or withholds (or causes to be deducted or withheld) any such amounts, such amounts shall be responsible paid over to the appropriate Taxing Authority and shall be treated 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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, Agreement as having been paid to the numerator Person in respect of which is the Sellers’ Parent or Sellers as the designated payee made such Defaulting Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting Partiesdeduction or withholding.

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) In the Defaulting Party shall be responsible for event that (i) the entire Parent Termination Fee payable Closing fails to occur due to a material breach by Parent under Section 8.06(b) of Purchaser hereunder that gives rise to a right to terminate the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day following the termination of the Merger Agreement pursuant to Section 8.03(a12.01(e) and (ii) all of the conditions to Purchaser's obligations to proceed with the Closing under ARTICLE 7 have been satisfied or waived (other than (A) such conditions which by their nature are to be satisfied on the Closing Date, but assuming such condition were capable of being satisfied as of the date of termination, and (B) such conditions where Purchaser's material breach was the proximate cause of the failure of any such conditions being satisfied) (collectively, a "Purchaser Failure to Close"), then Purchaser (or the Equity Investor pursuant to the Equity Commitment Letter) shall, upon termination of this Agreement by the Seller pursuant to Section 8.03(b12.01(e), pay to Seller in immediately available funds by wire transfer no later than two (2) thereof; Business Days after a written demand by Seller therefor, a fee of three million dollars (b$3,000,000) (the "Termination Fee"), as liquidated damages and not as a penalty, it being understood that in no event shall Purchaser be required to pay the Termination Fee on more than one occasion. Notwithstanding anything contained herein to the contrary, but subject to the terms set forth herein and in the Equity Commitment Letter, in the event there is a Purchaser Failure to Close and Seller demands and receives the Termination Fee from Purchaser (or the Equity Investor pursuant to the Equity Commitment Letter), the payment of the Termination Fee shall be the sole remedy of Seller and its Affiliates against any member of the Purchaser Group for, and no member of the Purchaser Group shall have, any Liability or obligation for, and Seller and its Affiliates shall not otherwise make any Claim for, any matter under, relating to or arising out of, the transactions contemplated by this Agreement, the Ancillary Agreements, the Equity Commitment Letter or any other Contract, document or agreement delivered pursuant to this Agreement, whether based on contract, tort, strict liability, other Applicable Laws or otherwise, or any Claim, based on, in respect of, or by reason of any of the Company’s fees foregoing. The pursuit by Seller of specific performance to consummate the Closing hereunder shall not be deemed to waive Seller's rights to demand and expenses receive the Termination Fee hereunder; provided, however, that under no circumstances shall become payable by Parent in accordance with Section 8.06(dSeller be permitted or entitled to receive both (i) a grant of an Order of specific performance or other equitable relief to cause the consummation of the Merger Agreement, the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; Closing and (cii) 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 obligations payment of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 PartiesTermination Fee.

Termination Fee. 3.1 If the Merger is not consummated and the Parent Termination Fee becomes payable by Parent Seller terminates this Agreement pursuant to Section 8.06(b8.1(c) due to (i) a breach of Buyer’s representations in Sections 5.6 or 5.8 or (ii) Buyer’s failure to obtain the vote of the requisite majority of the shareholders of Buyer to approve the Transaction at the extraordinary general meeting of Buyer’s shareholders called pursuant to Section 6.15, and provided in each case that a Target Company MAE (which for purposes hereof will be deemed to exclude paragraphs (i), (ii) and (vi) of the Merger Agreementproviso set forth in the definition of Target Company MAE) has not occurred, then Buyer shall, at Seller’s option and any party hereto is a Defaulting Party (as defined below)in Seller’s sole discretion, notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay to Seller an amount equal to $4.15 million (the Parent “Termination Fee”) in immediately available funds within ten (10) Business Days after the date of such termination. Buyer acknowledges and agrees that (i) the agreements contained in this Section 8.3 are an integral part of the Transaction Documents and the Transactions and (ii) in light of the difficulty of accurately determining actual damages with respect to the foregoing, upon any such termination of this Agreement and payment in full of the Termination Fee pursuant to Parent this Section 8.3, the right to such payment constitutes a reasonable estimate of the losses that will be suffered by wire transfer reason of same day fund within one (1) Business Day following the any such termination of this Agreement and constitutes liquidated damages (and not a penalty). Notwithstanding anything to the Merger Agreement contrary set forth herein, Seller may pursue the remedies permitted pursuant to Section 8.03(a) or 10.10 subject to the conditions set forth therein. If the Termination Fee is due pursuant to this Section 8.03(b) thereof; (b) in 8.3 and Buyer fails to pay such amount to Seller pursuant to the event terms of this Section 8.3, then Buyer shall also be liable for 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 reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations of the Defaulting Party by Seller in connection with any Action to enforce Seller’s rights under this Section 3.1, collectively, the “Default Obligations”8.3 that results in a judgment by a court of competent jurisdiction against Buyer for such amount (or any portion thereof). 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.72

Termination Fee. 3.1 If Notwithstanding Section 9.3 above, in the Merger event that there is not consummated a valid and effective termination of this Agreement by the Parent Termination Fee becomes payable by Parent Purchaser pursuant to Section 8.06(b) 9.1(e), then the Company Parties shall jointly and severally pay to the Purchaser a termination fee equal to Six Hundred Thirty-Nine Thousand U.S. Dollars ($639,000), plus the Expenses incurred by or on behalf of the Merger AgreementPurchaser 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 contemplated hereby or thereby, including any related SEC filings, the Solicitation Documents, any Redemption and any party hereto is a Defaulting Party PIPE Investment (as defined belowsuch aggregate amount, the “Termination Fee”), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party . The Termination Fee shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent paid by wire transfer of same day fund immediately available funds to an account designated in writing by the Purchaser within one ten (110) Business Day following Days after the termination Purchaser delivers to the Company the amount of such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the Merger Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) contrary 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 this Agreement, the Defaulting Party shall be responsible for all such fees Parties expressly acknowledge and expenses payable by Parent; and (c) agree that, with respect to any termination of this Agreement in circumstances where the event that a Non-Defaulting Party’s (or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due and Termination Fee is 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 obligations payment of the Defaulting Party under this Section 3.1Termination Fee shall, collectively, the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion in light of the Default Obligations. A Defaulting Party’s “Pro Rata Portion” difficulty of accurately determining actual damages, constitute liquidated damages with respect to any claim for damages or any other claim which the purposes Purchaser would otherwise be entitled to assert against any Company Party or any Seller or any of their respective Affiliates or any of their respective assets, or against any of their respective directors, officers, employees or shareholders with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to the Purchaser, provided, that the foregoing shall not limit (x) any Company Party or any Seller from Liability for any Fraud Claim relating to events occurring prior to termination of this Section 3.1 is a fraction, Agreement or (y) the numerator rights of which is such Defaulting Party’s Contemplated Ownership Percentage and the denominator Purchaser to seek specific performance or other injunctive relief in lieu of which is the aggregated Contemplated Ownership Percentage of all Defaulting Partiesterminating this Agreement.

Termination Fee. 3.1 If (a) Notwithstanding Section 10.3 above, in the Merger event that there is not consummated a valid and the Parent Termination Fee becomes payable effective termination of this Agreement by Parent Purchaser pursuant to Section 8.06(b10.1(f) or Section 10.1(i) then the Company shall pay to Purchaser a termination fee equal to Three Million U.S. Dollars ($3,000,000) plus the Expenses actually incurred by or on behalf of Purchaser or any of its Affiliates in connection with the Merger Agreementauthorization, 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 party hereto is a Defaulting Party PIPE Investment (as defined belowsuch aggregate amount, the “Company Termination Fee”), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party . The Company Termination Fee shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent paid by wire transfer of same day fund immediately available funds to an account designated in writing by Purchaser within one five (15) Business Day following Days after Purchaser delivers to the termination Company the amount of such Expenses, along with reasonable documentation in connection therewith. Notwithstanding anything to the Merger Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) contrary 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 this Agreement, the Defaulting Party shall be responsible for all such fees Parties expressly acknowledge and expenses payable by Parent; and (c) agree that, with respect to any termination of this Agreement in circumstances where the event that a Non-Defaulting Party’s (or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due and Company Termination Fee is 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 obligations payment of the Defaulting Party under this Section 3.1Company Termination Fee shall, collectively, the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion in light of the Default Obligations. A Defaulting Party’s “Pro Rata Portion” difficulty of accurately determining actual damages, constitute liquidated damages with respect to any claim for damages or any other claim which Purchaser would otherwise be entitled to assert against the purposes Company or any of its Affiliates or any of their respective assets, or against any of their respective directors, officers, employees or 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 Fraud Claim relating to events occurring prior to termination of this Section 3.1 is a fraction, Agreement or (y) the numerator rights of which is such Defaulting Party’s Contemplated Ownership Percentage and the denominator Purchaser to seek specific performance or other injunctive relief in lieu of which is the aggregated Contemplated Ownership Percentage of all Defaulting Partiesterminating this Agreement.

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 after the Defaulting Party date hereof an Alternative Acquisition Proposal with respect to Active Subsea is received and not withdrawn prior to the Termination Date and, prior to 225 days following the Termination Date, an Acquisition Transaction with respect to Active Subsea is consummated or a definitive agreement for an Acquisition Transaction with respect to Active Subsea is entered into and subsequently consummated, Active Subsea shall pay to Trico a termination fee of Five Million United States Dollars (US$5,000,000.00) in cash (the “Termination Fee”). (b) If there has been an Active Subsea Change in Recommendation, Active Subsea shall pay to Trico the Termination Fee. (c) If Active Subsea materially breaches the Transaction Agreement, Active Subsea shall pay to Trico the Termination Fee. (d) In no event shall Active Subsea be required to pay the Termination Fee other than as a result of the matters set forth in Sections 4.3(a), (b) or (c), and in no event shall Active Subsea be required to pay the Termination Fee more than once. Any payment of the Termination Fee pursuant to this Section 4 shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent made by wire transfer of same immediately available funds, one business day fund within one after, as applicable, the consummation of an Acquisition Transaction (1) Business Day following in the termination case of the Merger Agreement a payment pursuant to Section 8.03(a) 4.3(a)), the occurrence of an Active Subsea Change in Recommendation (in the case of a payment pursuant to Section 4.3(b)), or the delivery of notice from Trico that Active Subsea has materially breached the Transaction Agreement (in the case of a payment pursuant to Section 8.03(b) thereof; 4.3(c)). Payment of the Termination Fee shall constitute the sole and exclusive remedy of Trico in connection with a termination of this Agreement as a result of the matters set forth in Sections 4.3(a), (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 (and Active Subsea shall not be responsible for any fees or the respective Guarantor’s) liabilities expenses incurred by Trico. 5. EXPENSES Except as provided below and with respect to any Termination Fee payable under the relevant Limited Guarantee become due and payableSection 4.3, 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 byin connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses, such Non-Defaulting Party whether or not the Offer is consummated. 6. REGULATORY APPROVALS Each of Trico and Active Subsea shall fully cooperate to promptly, but in no event later than ten (10) days after the date the Press Announcement is made, make all filings as required under any applicable antitrust, competition or trade regulatory laws, including specifically any national competition authorities which may have jurisdiction over the parties or the respective Guarantor) under such Limited Guarantee (the obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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.transactions -5-

Termination Fee. 3.1 If In the Merger is event that an initial Closing of this Offering shall not consummated be consummated, due to a breach by the Placement Agent of its representations contained in this Agreement, prior to the later of (i) January 31, 1996 or (ii) seventy (70) days after the receipt of the Memorandum, or as extended for an additional thirty (30) days as specified in the Memorandum, the Company and the Parent Termination Fee becomes payable by Parent pursuant to Section 8.06(b) Placement Agent shall be released from any and all commitments and obligations hereunder, except that the Company shall, nevertheless, promptly upon demand reimburse the Placement Agent for its accountable expenses incurred in connection with this Offering (such as travel expenses and expenses incurred in due diligence investigations), including, without limitation, the reasonable fees and disbursements of the Merger Agreement, and Placement Agent's counsel for services rendered. If this Offering shall not be consummated because the Company for any party hereto reason is a Defaulting Party unable or unwilling to complete or otherwise determines not to proceed with this Offering (as defined below), notwithstanding anything provided under including the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 failure of the Company’s 's shareholders to authorize and issue the appropriate number of shares of Common Stock and the possible change in control resulting therefrom to effect the transactions contemplated herein), or if the Company prevents the completion of this Offering prior to the initial Closing because the Company breaches any representation, covenant or warranty contained herein or for any other reason, the Company shall promptly upon demand reimburse the Placement Agent for its accountable expenses incurred in connection with this Offering (such as travel expenses and expenses incurred in due diligence investigations), including, without limitation, the reasonable fees and expenses shall become payable by Parent in accordance with Section 8.06(d) disbursements of the Merger Placement Agent's counsel for services rendered, together with a minimum of $250,000 to compensate the Placement Agent for the efforts of its investment bankers and staff in connection with this Offering. In no event, however, will the total amount due to the Placement Agent exceed $400,000 in the aggregate. If this Offering shall not be consummated for any reason (other than solely because the Placement Agent breached any of its representations contained in this Agreement) and the Company at any time prior to December 31, 1996 engages in any merger or business combination with any other entity, or sells control or all or substantially all of the assets of the Company, or engages in a financing other than through the Placement Agent, the Defaulting Party Company shall be responsible for all such fees and expenses payable by Parent; and (c) pay the Placement Agent the maximum amount set forth 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Partiespreceding sentence.

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) In the Defaulting Party shall be responsible for event that either: (X) the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal MGM Entities are entitled to the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day following the termination of the Merger terminate this Agreement pursuant to Section 8.03(a10.1(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 (ii) each of the Closing conditions set forth in Section 7.1 have been satisfied or 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 Purchaser failing to use its Commercially Reasonable Efforts to perform its respective obligations under this Agreement in accordance with the terms and conditions hereof, and (iv) the MGM Entities are not otherwise in default hereunder, then in either such event (X) or (Y) the MGM Entities shall 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 (which shall occur automatically on such fifth Business Day unless agreed to otherwise by the Parties in writing) Purchaser shall pay, or cause to 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 the Termination Fee pursuant to this Section 8.03(b6.14(a) thereof; shall be guaranteed by Purchaser Parent pursuant to the Purchaser Guaranty. Subject to the occurrence of the matters set forth in subsection (bX) or subsection (Y) (i), (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 any the sale of the Company’s fees Shares to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser's failure to close, 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) Seller's actual damages in the event that the sale of the Shares to Purchaser as contemplated by this Agreement is not consummated as a Non-Defaulting Party’s (result of Purchaser's failure to close would be difficult 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 byimpractical to determine, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations Termination Fee represents a reasonable estimate of the Defaulting Party under this Section 3.1, collectively, harm likely to be suffered by Seller in the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion event the sale of the Default Obligations. A Defaulting Party’s “Pro Rata Portion” for the purposes Shares to Purchaser as contemplated by this Agreement is not consummated as a result 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 PartiesPurchaser's failure to close.

Termination Fee. 3.1 (a) If this Agreement is validly terminated by the Merger is not consummated and the Parent Termination Fee becomes payable by Parent Representative pursuant to Section 8.06(b8.01 (Termination) other than pursuant to Section 8.01(a) (the section referring to mutual written consent) and at such time of termination (i) the conditions to Closing set forth in Section 3.01 (Conditions to the Purchaser’s and the Merger Sub’s Obligations) (other than those to be satisfied at the Closing itself, which shall be capable of satisfaction as of such date) shall have been satisfied as of the date of termination, (ii) the 44 Purchaser has failed to consummate the Closing in breach of Section 2.01 (The Closing), (iii) the proceeds of the Debt Financing (or Alternative Financing) are not available to the Purchaser on the terms set forth in the Debt Commitment Letter on the date of termination, and (iv) the Purchaser and Merger Sub are not otherwise in material breach of Section 5.08 (Financial Capacity) or Section 7.09 (Financing) (clauses (i), (ii), (iii) and (iv) collectively, the “Specified Financing Failure Termination Event”), then the Purchaser shall pay to the Company a fee equal to the Financing Failure Termination Fee set forth on the Fee Schedule (the “Financing Failure Termination Fee”) within five (5) Business Days after such termination. The parties hereto acknowledge and agree that the agreement contained in this Section 8.02(a) is an integral part of the transactions contemplated hereby, that without this agreement the parties hereto would not have entered into this Agreement, and that any party hereto is amount payable pursuant to this Section 8.02(a) does not constitute a Defaulting Party penalty but shall constitute liquidated damages to compensate the Company and the Sellers. Payment of the Financing Failure Termination Fee shall be the Company’s sole and exclusive remedy against the Purchaser, Merger Sub and any of their respective former, current and future Affiliates, representatives, shareholders, members, managers, partners, successors and assigns (as defined belowcollectively, the “Purchaser Related Parties”) or any lender participating in the Debt Financing and its Affiliates following a Specified Financing Failure Termination Event. Upon payment of the Financing Failure Termination Fee in accordance with the terms of this Agreement, none of the Company, any Company Subsidiary, the Representative, any Seller or any of their Affiliates shall have any rights or claims against any of the Purchaser Related Parties or any lender participating in the Debt Financing and its Affiliates relating to this Agreement, including under Section 8.04 (Specific Performance), notwithstanding anything provided or any of the transactions contemplated hereby, or in respect of any oral representations made or alleged to be made in connection herewith, whether at law or equity, in contract (including under the Limited GuarantiesGuaranty), (a) in tort or otherwise, and none of the Defaulting Party Purchaser Related Parties or any lender participating in the Debt Financing and its Affiliates shall have any further liability or obligation to the Company, any Company Subsidiary, the Representative, any Seller or any of their Affiliates relating to or arising out of this Agreement or any of the transactions contemplated hereby or in respect of any oral representations made or alleged to be responsible for made in connection herewith. The parties hereto acknowledge and agree that in no event shall the entire Parent Purchaser be required to pay the Financing Failure Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund within on more than 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Partiesoccasion.

Termination Fee. 3.1 If the Merger (x) (i) this Agreement is not consummated and the Parent Termination Fee becomes payable by Parent terminated pursuant to Section 8.06(bSection 9.1(h); (ii) the Bankruptcy Court approves a third party as the purchaser of the Merger AgreementPurchased Assets at the hearing on the Sale Motion (or any subsequent sale), and any party hereto (iii) such alternative sale closes, or (y) this Agreement is a Defaulting Party (as defined belowterminated pursuant to Section 9.1(d), notwithstanding anything provided under then, subject to the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) approval of the Merger Bankruptcy Court (which Seller shall seek through the Procedures Order), Seller shall pay to Buyer (solely, in the case of a termination pursuant to clause (x) above, from the proceeds of such alternative sale), a fee of $3,400,000.00 and reimburse actual and reasonable documented expenses incurred by Buyer in connection with this Agreement and shall promptly pay an amount equal up to $550,000 (the Parent “Termination Fee to Parent Fee”), by wire transfer of same day fund within one immediately available funds no later than five (15) Business Day following the termination Days after such sale closing. The claim of Buyer in respect of the Merger Agreement Termination Fee shall constitute a superpriority administrative expense claim, senior to all other administrative expense claims of Seller other than any carve-out and any administrative claims or debtor-in-possession financing obligations arising under any cash collateral or financing order entered by the Bankruptcy Court, as administrative expenses under sections 503 and 507(b) of the Bankruptcy Code in the Bankruptcy Case and shall be paid in cash (solely, in the case of clause (x) above, from the sale proceeds from any alternative sale or sales). The Parties agree that the Termination Fee is not a penalty, but is liquidated damages in a reasonable amount that will compensate Buyer in circumstances in which the Termination Fee is payable, which amount would otherwise be impossible to calculate with precision, and that the Termination Fee shall be Buyer’s sole and exclusive remedy with respect to such termination. For the avoidance of doubt, nothing set forth herein with respect to the Termination Fee is intended to preclude Buyer, upon a termination by Buyer pursuant to Section 8.03(a) 9.1, from pursuing any remedies at law or Section 8.03(b) thereof; (b) in the event any equity available to it as a result of the CompanySeller’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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Partiesbreach hereof.

Termination Fee. 3.1 (a) If this Agreement is terminated pursuant to Section 7.1(c), then Parent shall pay for the Merger benefit of the Applicable Shareholders the Breach Termination Fee, such payment to be made to the Applicable Shareholders in immediately available funds within two (2) Business Days of the termination of this Agreement. If this Agreement is not consummated terminated pursuant to Section 7.1(b) or 7.1(e), then Parent shall pay for the benefit of the Applicable Shareholders the Regulatory Termination Fee, such payment to be made to the Applicable Shareholders in immediately available funds within two (2) Business Days of the termination of this Agreement; provided, however, that if at the time of such termination, the Sponsor Sellers were entitled to terminate this Agreement pursuant to Section 7.1(c) (without reference to any notice or cure periods therein) and the breach that would so entitle the Sponsor Sellers to so terminate has contributed directly to the cause of or resulted in such termination, then Parent shall pay the Breach Termination Fee becomes payable in lieu of the Regulatory Termination Fee. Notwithstanding the foregoing, in the event of a termination pursuant to Section 7.1(b) or 7.1(c), Parent shall not be obligated to pay the Breach Termination Fee or Regulatory Termination Fee in the event that at the time of such termination any of the conditions set forth in Sections 6.3(a), 6.3(b) or 6.3(c) were not satisfied (but, with respect to Section 6.3, in each case, substituting “the date of termination” for “as of or prior to the Closing” in such Sections) and such failure to be so satisfied has been the cause of or resulted in the termination; provided, further, however, that in no event shall Parent be required to pay the Breach Termination Fee or Regulatory Termination Fee on more than one occasion or be required to pay both the Breach Termination Fee and the Regulatory Termination Fee. If a Regulatory Termination Fee is paid by Parent pursuant to Section 8.06(b) 7.13, and at the time of such payment and the associated termination of this Agreement in accordance with this Article VII, circumstances do not exist that would entitle the Company or the Sellers to receive the Breach Termination Fee, then the sole remedy of the Merger AgreementCompany and the Sellers hereunder in respect of such termination is the Regulatory Termination Fee. Buyer and Parent agree that if this Agreement is terminated for any reason (x) no Seller shall be liable to Buyer or Parent for any damages or other remedies in respect of any breach by any Seller or by the Company, and neither Buyer nor Parent shall seek any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guarantiesdamages or remedies from any Seller in respect thereof, (ay) the Defaulting Party Buyer and Parent shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal look only to the Parent Termination Fee to Parent Company for any damages or other remedies in respect of any breach by wire transfer of same day fund within one any Seller or by the Company and (1z) 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 aggregate liability to Buyer and expenses shall become payable by Parent in accordance with Section 8.06(drespect of any breach by the Company or any Seller shall in no event exceed the Breach Termination Fee. The Company agrees that in the circumstances described in the preceding sentence it will be liable for the damages or remedies referred to in the preceding sentence, to the extent of such damages or remedies but subject to clause (z) 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Partiespreceding sentence.

Termination Fee. 3.1 (a) If the Merger this Agreement is not consummated and the Parent Termination Fee becomes payable terminated by Parent Sellers pursuant to Section 8.06(b10.1(c)(i) or if this Agreement is terminated by Purchasers pursuant to Section 10.1(b)(ii) solely as a result of the Merger failure of the condition in Section 8.1(h) to occur or Section 10.1(b)(iii) (each, an “Applicable Termination Section”), then Purchasers will pay to Sellers, within two (2) Business Days after such termination, a termination fee equal to two hundred fifty thousand dollars ($250,000) (the “Termination Fee”). (b) Purchasers acknowledge and agree that the provisions of this Section 10.3 are an integral part of the transactions contemplated by this Agreement, and any party hereto is a Defaulting Party (as defined below)that, notwithstanding anything provided under without such provisions, the Limited Guaranties, (a) Sellers would not have entered into this Agreement. If Purchasers shall fail to pay the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund the Sellers within one two (12) Business Day following Days after the termination of the Merger this Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) an Applicable Termination Section, and, in order to obtain the event any payment from Purchasers of the Company’s Termination Fee, the Sellers (or any Seller, individually) makes a claim (including any Legal Proceeding) against Purchaser(s) that results in a judgment against Purchaser(s), Purchasers shall, jointly and severally, pay the Termination Fee to the Sellers, plus the reasonable costs and expenses of the Sellers (including their reasonable attorneys’ fees and expenses expenses) incurred or accrued in connection with such claim. Additionally, if Purchasers shall become payable by Parent in accordance with Section 8.06(dfail to pay the Termination Fee to the Sellers within two (2) Business Days after the termination of this Agreement pursuant to an Applicable Termination Section, Purchasers shall, jointly and severally, pay to Sellers interest on the Merger AgreementTermination Fee and, as applicable, on the Defaulting Party shall be responsible for all such fees amounts of any costs and expenses payable by Parent; and Purchasers pursuant to the immediately foregoing sentence at the prime lending rate prevailing during such period as published in The Wall Street Journal. Any interest payable hereunder shall be calculated on a daily basis from the date such amounts were required to be paid until (cbut excluding) 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 bydate of actual payment, and all fees and outon the basis of a 360-of-pocket expenses incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”)day year. 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.ARTICLE XI MISCELLANEOUS 11.1

Termination Fee. 3.1 If The Purchaser shall pay to the Merger is Company, by wire transfer of immediately available funds, as liquidated damages and not consummated and the Parent Termination Fee becomes payable by Parent pursuant to Section 8.06(b) of the Merger Agreementa penalty, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to ten million dollars ($10,000,000) (the Parent “Termination Fee”) by the second (2nd) Business Day after the date on which this Agreement is terminated by the Stakeholder Representative pursuant to (x) Section 11.1(f) (if Purchaser is then in breach of the covenants and agreements set forth in Section 8.5) or (y) Section 11.1(b) (if Purchaser is then in breach of the covenants and agreements set forth in Section 8.5), or by the Purchaser pursuant to Section 11.1(d), if (a) at the time of such termination pursuant to Section 11.1(b) or Section 11.1(d), respectively, a closing condition in Section 9.1(b) (Waiting Periods) and/or Section 9.1(c) (No Prohibition) (in the case of Section 9.1(c) (No Prohibition), as a result of, relating or pursuant to or arising from any antitrust regulatory Law) (each of the foregoing terminations, a “Qualifying Termination”) has not been satisfied and (b) immediately prior to such termination, all other conditions set forth in Section 9.1 (Conditions to the Obligations of Purchaser) are satisfied or waived or capable of being satisfied (other than those conditions that by their nature are to be satisfied by actions to be taken at the Closing). The Termination Fee shall be paid to Parent the account(s) designated in writing by wire transfer of same day fund within the Company at least one (1) Business Day following in advance. If Purchaser fails to promptly pay the termination of the Merger Agreement pursuant to Termination Fee as contemplated by this Section 8.03(a) or Section 8.03(b) thereof; (b) in the event 11.3 when due, then Purchaser shall also be liable for 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 reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred byby the Seller, such Non-Defaulting Party (or Holdings, the respective Guarantor) Stakeholder Representative and the Company in connection with any Action to enforce the Stakeholder Representative’s and the Company’s rights under such Limited Guarantee (this Section 11.3. For the avoidance of doubt, the obligations of Purchaser to pay the Defaulting Party Termination Fee shall survive the termination of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 12.13 (Enforcement), each of the parties expressly acknowledges and agrees that (i) in the event of a Qualifying Termination, the Company’s right to receive payment of the Termination Fee pursuant to this Section 11.3 and any other amounts payable to Seller, Holdings, the Stakeholder Representative and the Company under this Section 3.1, collectively11.3 shall constitute the sole and exclusive remedy of Seller, the “Default Obligations”Stakeholder Representative, Holdings, the Company, or any of their respective Affiliates against Purchaser or any of its Affiliates for all losses and damages in respect of this Agreement or the transactions contemplated by this Agreement, and (ii) upon payment of the Termination Fee and such other amounts to Seller, Holdings, the Stakeholder Representative and the Company pursuant to this Section 11.3, none of Purchaser or its Affiliates shall have any further liability to Seller, Holdings, the Stakeholder Representative, the Company or any of their respective Affiliates relating to or arising out of this Agreement or the transactions contemplated by this Agreement, other than with respect to Section 8.3(a) (Confidentiality). If there is more than one Defaulting PartyNotwithstanding anything herein to the contrary, each Defaulting Party shall be responsible for under no circumstances will the amount payable by Purchaser or any of its Pro Rata Portion Affiliates to Seller, Holdings, the Stakeholder Representative, the Company or any of their respective Affiliates in the Default Obligations. A Defaulting Party’s “Pro Rata Portion” for the purposes event of a termination of this Agreement exceed an amount equal to the Termination Fee plus the other amounts payable pursuant to 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 Parties11.3.

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 Purchaser (i) terminates this Agreement pursuant to and in accordance with Section 11.01(c), then Seller shall pay or cause to be paid to Purchaser an aggregate amount equal to the Defaulting Party Termination Fee to an account and in such proportion designated by Purchaser at least two (2) Business Days prior to the date of payment, by wire transfer of immediately available funds within five (5) Business Days following the date such Termination Fee is due to Purchaser; or (ii) if the condition to Closing set forth in Section 2.05(a)(vii) to deliver the Option Agreement executed by Commodore, the Xxxx-Schl JV Partner and the TCC Xxxxxxxxxxx XX Partner is not fully satisfied at Closing and Purchaser elects, at its sole discretion, to waive such condition set forth in Section 2.05(a)(vii) and consummate the transactions contemplated by this Agreement, then the Purchase Price shall be responsible for the entire Parent Termination Fee payable reduced by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee Fee; provided, if Commodore and only the Xxxx-Schl JV Partner or the TCC Xxxxxxxxxxx XX Partner executes the Option Agreement, then the Purchase Price shall be reduced by an amount equal to Parent by wire transfer one-half of same day fund within one (1) Business Day following the Termination Fee. Upon termination of the Merger this Agreement by Purchaser 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 11.01(c), Purchaser’s right to receive the Merger Agreement, the Defaulting Party Termination Fee shall be responsible the sole and exclusive remedy of Purchaser and its Affiliates against any Seller Party for all such fees and expenses payable by Parent; and any Losses suffered as a result of any breach of or failure to perform under this Agreement (c) in the event that a Non-Defaulting Party’s (including any inaccuracy or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due and payablebreach of any representation, the Defaulting Party shall indemnify such Non-Defaulting Party (warranty, covenant, condition, agreement 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 obligations obligation of the Defaulting any Seller Party under this Section 3.1Agreement) or of the failure of the Closing to be consummated, collectivelyor otherwise in connection with the transactions contemplated by this Agreement, and other than payment of such amount (as long as the “Default Obligations”Closing is not consummated), none of the Seller Parties shall have any Liability or obligations arising out of or relating to this Agreement or the transactions contemplated hereby. If there is more than one Defaulting PartyNotwithstanding the foregoing, each Defaulting Party Purchaser shall be responsible for its Pro Rata Portion permitted to seek either specific performance or payment of the Default ObligationsTermination Fee; provided, however, in no event shall Purchaser be entitled to receive both the Termination Fee and a grant of specific performance. A Defaulting Party’s “Pro Rata Portion” for Notwithstanding anything in this Agreement to the purposes contrary, under no circumstances (as long as the Closing is not consummated) will Purchaser and their Affiliates, in the aggregate, be entitled to monetary damages or other Losses in excess of this Section 3.1 (or, where the Termination Fee is a fractionpayable, other than) the numerator amount of which is such Defaulting Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting PartiesTermination Fee.

Termination Fee. 3.1 If the Merger is not consummated and the Parent Termination Fee becomes payable by Parent pursuant to Without limiting Section 8.06(b8.7(d) of the Merger XXX-STACK Purchase Agreement, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 XXX-STACK Holdings, LLC, a NonDelaware limited liability company (“Holdings”), or its designee shall receive full payment of a “Termination Fee” (as defined in the XXX-Defaulting PartySTACK Purchase Agreement) pursuant to Section 8.7(a) of the XXX-STACK Purchase Agreement, the receipt of such Termination Fee shall be deemed to be Buyer’s sole liability and entire obligation and Seller’s, FE-STACK’s (as defined in the XXX-STACK Purchase Agreement) and Holdings’ exclusive remedy for any and all losses or damages suffered or incurred by Seller, FE-STACK, Holdings, any of their respective Affiliates or any other Person in connection with this Agreement and the respective Guarantor’s) liabilities under XXX-STACK Purchase Agreement (and the relevant Limited Guarantee become due termination hereof and payablethereof), the Defaulting Party shall indemnify Transactions and the “Transactions” (as defined in the XXX-STACK Purchase Agreement) (and the abandonment thereof) or any matter forming the basis for such Non-Defaulting Party (or the respective Guarantor) in full for all payments made byterminations, and all fees and outnone of Seller, FE-ofSTACK, Holdings, 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, the XXX-pocket expenses incurred bySTACK Agreement, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations of the Defaulting Party under this Section 3.1, collectivelyTransactions, the “Default Obligations”). If there is more than one Defaulting PartyTransactions” (as defined in the XXX-STACK Purchase Agreement) or any matters forming the basis of such terminations, 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 all of which is such Defaulting Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting Partiesclaims, actions or proceedings are hereby waived.

Termination Fee. 3.1 If the Merger this Agreement is not consummated and the Parent Termination Fee becomes payable terminated (or deemed to be terminated) by Parent Sellers pursuant to Section 8.06(b) 11.01(e), then Buyer Parties will pay Holdings (on behalf of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, (aSellers) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to $7,500,000 (the Parent “Termination Fee”). In the event the Termination Fee is payable, such fee will be paid to Parent Holdings by wire transfer of same day fund Buyer Parties in immediately available funds within one five (15) Business Day following Days after the termination date of the Merger event giving rise to the obligation to make such payment. Any amounts not paid when due shall accrue interest at the rate of Five Percent (5%) per month. Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated (or deemed to be terminated) by Sellers pursuant to Section 8.03(a11.01(e), the Parties agree that (i) or Section 8.03(bthe Termination Fee shall be and shall be deemed to be liquidated damages, and (ii) thereof; (b) in the event any of the Company’s fees Sellers’ right to terminate this Agreement, pursuant to and expenses shall become payable by Parent in accordance with Section 8.06(d11.01(e), and to receive the Termination Fee pursuant to and in accordance with this Section 11.02, shall constitute the sole and exclusive remedy of Sellers and their Affiliates relating to or arising out of this Agreement and the transactions contemplated hereby with respect to any breach of this Agreement by Buyer Parties, and (iii) in no event shall the Sellers or any of their respective Affiliates seek any damages or any other recovery, judgment of any kind, at law or in equity or otherwise, including, without limitation, any direct, indirect, consequential or punitive damages, other than the Termination Fee, against Buyer Parties or its Affiliates or any of their respective representatives, directors, officers, employees, partners, managers, members or equityholders, in connection with or arising out of this Agreement or any breach or alleged breach hereof, and (iv) upon payment of the Merger AgreementTermination Fee, the Defaulting Party shall Buyer Parties will be responsible for all such fees and expenses payable by Parent; and (c) deemed forever released from any further obligation or liability under or with respect to this Agreement. The Parties acknowledge that the agreements contained 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 obligations this Section 11.02 are an integral part of the Defaulting transactions contemplated by this Agreement and that, without these agreements, no Party under would enter into this Section 3.1, collectively, the “Default Obligations”)Agreement. 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 The provisions of this Section 3.1 is a fraction11.02 are intended to be for the benefit of, the numerator of which is such Defaulting and shall be enforceable by, each Buyer Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting Parties.

Termination Fee. 3.1 If this Agreement is validly terminated by the Merger is not consummated and the Parent Termination Fee becomes payable by Parent (x) Representative pursuant to Section 8.06(bclause (iv) of Section 10.1 as a result of the Merger AgreementPurchaser having materially breached or failed to perform any of if its covenants and agreements in Section 7.13(a) or has otherwise breached of failed to perform any of its obligations under this Agreement and such breach of failure results in the inability to consummate the Purchaser Common Stock Offering, or (y) Purchaser pursuant to clause (v) of Section 10.1, the Sellers shall have complied with their obligations under Section 7.13(b), and any party hereto is a Defaulting Party all other conditions to Closing have been satisfied or waived (as defined belowother than those that by their terms are to be satisfied by deliveries made at the Closing, each of which would be satisfied if the Closing Date were the date of such termination), notwithstanding anything provided under then the Limited Guaranties, Purchaser shall pay or shall cause to be paid to the Sellers (aor their designee(s)) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an aggregate amount equal to the Parent Termination Fee to Parent by wire transfer of 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 $1,200,000 (the obligations of the Defaulting Party under this Section 3.1, collectively, the “Default ObligationsTermination Fee”). If there Termination Fee is more than one Defaulting Partypayable, each Defaulting Party the Purchaser shall pay such amount to the Sellers (or their designee(s)) in immediately available funds within five (5) Business Days after the date that this Agreement is terminated. Notwithstanding anything else to the contrary in this Agreement, if the Sellers shall be responsible for its Pro Rata Portion entitled to the payment of the Default ObligationsTermination Fee, the Termination Fee shall be the Sellers’ sole and exclusive remedy and recourse against the Purchaser, and the Sellers shall have no other claim or cause of action whatsoever against the Purchaser or any of its Affiliates under this Agreement or in respect of any of the transactions contemplated hereby, whether at law or at equity. A Defaulting Party’s “Pro Rata Portion” For the avoidance of doubt, (A) Sellers’ receipt of the Termination Fee (if payable) shall constitute liquidated damages and the maximum aggregate liability of the Purchaser for damages in connection with this Agreement shall be limited to the Termination Fee (if payable) and neither any Seller nor the Representative shall seek or obtain, nor shall it permit any of its Representatives or any other Person on its or their behalf to seek or obtain, nor shall any Person be entitled to seek or obtain, any recovery or award or any damages of any kind (including damages for the purposes loss of the benefit of the bargain, opportunity cost, loss of premium, time value of money or otherwise, or any consequential, special, expectancy, indirect or punitive damages), in the aggregate, in excess of the Termination Fee against the Purchaser and (B) the Representative will be entitled to seek specific performance of this Agreement to the extent permitted by Section 3.1 is a fraction, 11.9 prior to terminating this Agreement and triggering payment of the numerator Termination Fee but Sellers shall not be entitled to both specific performance to cause the Closing to occur pursuant to Section 11.9 and payment of which is such Defaulting Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting PartiesTermination Fee.

Termination Fee. 3.1 If (a) In the Merger event that this Agreement is not consummated and terminated by the Parent Termination Fee becomes payable by Parent T-Mobile Parties, pursuant to Section 8.06(b13.1(f) Crown shall pay to T-Mobile, on behalf of the Merger AgreementT-Mobile Parties, the T-Mobile SPEs and any party hereto is the Sale Site Subsidiaries, a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay termination fee in an amount equal to $250,000,000 (the Parent “Termination Fee”); it being understood that in no event shall Crown be required to pay the Termination Fee to Parent on more than one occasion. Any amount due under this Section 13.3(a) shall be paid by wire transfer of same same-day fund funds to an account provided in writing by T-Mobile to Crown within one (1) Business Day following the termination two business days of the Merger Agreement date of such termination. (b) Notwithstanding anything to the contrary contained in this Agreement, T-Mobile’s right, on behalf of the T-Mobile Parties, the T-Mobile SPEs and the Sale Site Subsidiaries, to receive payment of the Termination Fee pursuant to Section 8.03(a13.3(a) shall constitute the sole and exclusive remedy of the T-Mobile Parties, the T-Mobile SPEs and the Sale Site Subsidiaries and their respective Affiliates for any and all Claims suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or Section 8.03(b) thereof; (b) in for any breach or failure to perform hereunder at or prior to the event Initial Closing, and upon payment of the Termination Fee, none of Crown, the Tower Operator and any of their Affiliates or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Company’s fees and expenses shall become payable transactions contemplated by Parent this Agreement or in accordance with Section 8.06(d) respect of the Merger Agreementany Collateral Agreement or theory of Law or equity, the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; and whether in equity or at Law, in contract, in tort or otherwise. (c) Each Party acknowledges and agrees that the agreements contained in this Section 13.3 are an integral part of the event that a Non-Defaulting Party’s (or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due transactions contemplated by this Agreement and payablethat, without these agreements, the Defaulting Party other Parties would not have entered into this Agreement. Accordingly, if Crown fails to timely pay the Termination Fee as required hereby and, in order to obtain the payment of the Termination Fee, T-Mobile commences an Action which results in a judgment against Crown for the payment of the Termination Fee, Crown shall indemnify such Nonpay T-Defaulting Party (or the respective Guarantor) in full for all payments made by, and all fees and Mobile its reasonable out-of-pocket costs and expenses incurred by(including reasonable attorneys’ fees) in connection with such suit, such Non-Defaulting Party together with interest thereon at the prime rate (or as published in the respective GuarantorWall Street Journal) under such Limited Guarantee (in effect on the obligations date payment of the Defaulting Party under this Section 3.1, collectively, Termination Fee was required to be made through the “Default Obligations”)date such payment was actually received by T-Mobile. 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.ARTICLE 14

Termination Fee. 3.1 If Notwithstanding anything to the Merger contrary herein, if both (a) this Agreement is not consummated and the Parent Termination Fee becomes payable by Parent validly terminated pursuant to Section 8.06(b9.01(b)(ii) of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 at the event any time of the Company’s fees and expenses shall become payable by Parent in accordance with Section 8.06(d) of the Merger Agreementsuch termination, the Defaulting Party shall conditions set forth in Sections 2.02(c) (which injunction, judgment, order, ruling or Law is asserted under any Antitrust Law) or 2.02(d) are not satisfied (and the other conditions set forth in Section 2.02 have been satisfied or, with respect to those conditions that by their nature are to be responsible for all such fees and expenses payable by Parent; and satisfied at the Closing, which conditions are capable of being satisfied (c) in the event that a Non-Defaulting Party’s (or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due and payableprovided, 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 fraction9.03, the numerator failure of which is such Defaulting Party’s Contemplated Ownership Percentage the condition set forth in Section 2.02(d) to be satisfied, by itself, shall not be deemed to constitute a failure of the condition set forth in Section 2.02(e) to be satisfied)), then the Buyer shall pay or cause to be paid to the Seller within five (5) Business Days following valid termination of this Agreement and the denominator Seller’s written notice to the Buyer that such amount is due, a fee equal to $55,000,000 (the “Termination Fee”) by wire transfer of which immediately available funds to an account designated by the Seller in writing at least three (3) Business Days prior to such payment being due. Following termination of this Agreement in circumstances where the Termination Fee is due and payable in accordance with this Section 9.03, the aggregated Contemplated Ownership Percentage Seller’s right to receive the Termination Fee in full pursuant to this Section 9.03 (together with any reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Seller in enforcing this Section 9.03), will be the sole and exclusive remedy of the Seller and the other Seller Releasors against the Buyer, the Guarantor and any other Buyer Released Party for all Defaulting PartiesLosses arising as a result of or in connection this Agreement, the failure of the Closing to occur, any breach of any covenant in this Agreement or the failure of the transactions contemplated hereby to be consummated, and upon payment by the Buyer (or its designee) of such amounts, none of the Buyer Released Parties shall have any liability, responsibility or obligation arising under this Agreement or any exhibit or Schedule hereto or any Related Agreement, or any certificate or other document entered into, made, delivered, or made available in connection herewith or therewith, or as a result of any of the transactions contemplated hereby or thereby 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 at law or in equity in contract, in tort or otherwise, and neither the Seller nor any other Seller Releasor or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Buyer, the Guarantor or any of the other Buyer Released Parties relating to, arising out of or in connection with this Agreement or any Related Agreement, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination or in respect of any other document or theory of Law or equity; provided, however, that in no event shall the foregoing limitations apply (i) in the event of any Willful Breach by the Buyer or (ii) to any breach of the Confidentiality Agreement following the termination of this Agreement. Without limiting the foregoing, for clarity, in no circumstances shall the Seller be permitted or entitled to receive both a grant of specific performance or monetary damages and payment of the Termination Fee.

Termination Fee. 3.1 If Acquiror terminates this Agreement as a direct result of Principal Shareholder's breach of his covenant in Section 4.3, Target shall pay the Merger is not consummated and the Parent Termination Fee becomes payable by Parent pursuant to set forth in Section 8.06(b) 4.3 hereof. If Target does not contest the breach of the Merger Agreementcovenant in Section 4.3 by Principal Shareholder, Target shall promptly notify Acquiror of its agreement and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under pay the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(bwithin fifteen (15) business days after the date of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent Target's acknowledgment, in cash by wire transfer of same day fund within one (1) Business Day following immediately available funds to an account designated by Acquiror. If Target contests the termination breach of the Merger covenant, Target will pay the Termination Fee within thirty (30) days after a "Final Determination" (as hereafter defined) that Target terminated this Agreement as a result of Principal Shareholder's breach of the covenant in Section 4.3. Any dispute between Target and Acquiror concerning Target's liability shall be resolved by binding arbitration held pursuant to the procedures set forth in Section 8.03(a8.10(b), modified as follows: The parties shall use their best efforts to conduct an accelerated arbitration proceeding in which each side shall complete its presentation to the arbitrator no later than sixty (60) or Section 8.03(bdays after the date that Target notifies Acquiror that it is disputing its liability (the "Arbitration Notice Date") thereof; and the arbitrator shall deliver its written findings to the parties no later than seventy-five (b75) days after the Arbitration Notice Date. The nonprevailing party in the event any arbitration shall have fifteen (15) days from the date it receives the arbitrator's ruling in which to request that the arbitrator reconsider its ruling and to present its arguments therefor, which it shall concurrently deliver to the prevailing party; and the prevailing party shall have fifteen (15) days from date that it receives the reconsideration request, as presented to the arbitrator, in which to respond. The arbitrator shall affirm in writing its initial findings or reverse those findings within fifteen (15) days after receipt 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 prevailing party's opposition papers. The arbitrator's determination becomes a "Final Determination" 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 fractionupon the expiration of the non-prevailing party's right to request that the arbitrator reconsider its determination. The prevailing party at the time of the Final Determination shall be entitled to recover from the non-prevailing party all fees and expenses incurred in connection with the dispute, the numerator of which is such Defaulting Party’s Contemplated Ownership Percentage including reasonable attorneys fees and the denominator fees of which is the aggregated Contemplated Ownership Percentage arbitrator, together with interest on the amount of all Defaulting Partiesthe Termination Fee at the publicly announced prime rate of Citibank, N.A. from the date such Termination Fee was required to be paid. The provisions in this Section 7.2(b) shall survive the termination of this Agreement.

Termination Fee. 3.1 If this Agreement is validly terminated by the Merger is not consummated Company pursuant to (A) Section 8.1(g), (B) Section 8.1(c), or (C) Section 8.1(e) and at the Parent Termination Fee becomes payable by Parent time of such termination pursuant to Section 8.06(b8.1(e) of the Merger Agreement, and any party hereto is a Defaulting Party Company had the right to validly terminate this Agreement pursuant to (as defined belowx) Section 8.1(c), notwithstanding anything provided under or (y) Section 8.1(g), then Purchaser will pay the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay Company an amount equal to $46,666,667 (the Parent “Termination Fee to Parent Fee”) by wire transfer of same day fund immediately available funds within one three (13) Business Day following Days after the termination date of the Merger Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) in the event any of such termination. Without limiting the Company’s fees and expenses shall become payable by Parent in accordance with Section 8.06(d) right to obtain an award 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 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 fees and 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 byin connection with such Claim (the “Termination Fee Claim Expenses”) and (y) to 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 Non-Defaulting Party payment was required to be made hereunder through the date of payment (such interest payment, together with the Termination Fee Claim Expenses, the “Enforcement Costs”). Notwithstanding anything to the contrary set forth herein, but subject in all respects to the provisions of Section 10.16(b), the Sellers and the Company may pursue the remedies permitted pursuant to Section 10.16 at any time, and any election to pursue such remedies shall in no way modify or the respective Guarantor) under such Limited Guarantee (amend the obligations of Purchaser to pay the Defaulting Party under Termination Fee and/or the Enforcement Costs pursuant to this Section 3.18.4; provided that notwithstanding anything to the contrary herein or otherwise, collectivelyin no event shall the Enforcement Costs payable pursuant to this Section 8.4 exceed $1,500,000 in the aggregate. Purchaser acknowledge and agree that the agreements contained in this Section 8.4 are an integral part of the transactions contemplated hereby, and that without these agreements, the “Default Obligations”). 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 Company and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting PartiesSellers would not have entered into this Agreement.

Termination Fee. 3.1 If (i) Sellers agree and acknowledge that Purchaser's preparation, negotiation and execution of the Merger is not consummated Agreement have resulted from substantial investment of management time and have required significant commitment of financial and other resources by Purchaser, and that the Parent preparation, negotiation and execution have provided value to the Sellers. Consequently, if a Termination Fee becomes payable by Parent pursuant to Section 8.06(b) of the Merger Agreement, and any party hereto is a Defaulting Party Event (as defined in subsection (ii) below)) occurs, notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party Sellers shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent $750,000 by wire transfer of same day fund within one immediately available funds to Purchaser as a Termination Fee and shall also pay the Expense Reimbursement, in accordance with clause (iii) below; provided that Sellers shall not be obligated to pay the Termination Fee if (x) prior to the occurrence of the Termination Fee Event, the Agreement has validly been terminated pursuant solely to (1) Business Day following Section 8.1 or 8.3 or (2) by the Purchaser pursuant to Section 8.2(a) or (b) if at the time of such termination there is no proposal for an Alternative Transaction pending or (y) an Alternative Transaction is not consummated. (ii) A "Termination Fee Event" is the occurrence of any of the following: (A) The termination of the Merger this Agreement pursuant to Section 8.03(a8.2(c) or Section 8.03(b(d) thereofhereof; (bB) The execution by any Seller, or any trustee in bankruptcy for any Seller, of an agreement providing for the sale or disposition of all or any material portion of the Business or of an equity interest in a Seller, or any business combination of a Seller, involving any party other than Purchaser or an affiliate thereof, within eighteen months of termination of this transaction (an "Alternative Transaction"); or (C) The confirmation of any plan of reorganization in the event Bankruptcy Court, or the approval of any agreement or transaction by the Bankruptcy Court, that provides for any Alternative Transaction within eighteen months of termination of this transaction. (iii) Sellers shall pay the Company’s fees Termination Fee and expenses Expense Reimbursement simultaneously with the closing of any Alternative Transaction (unless with respect to the Expense Reimbursement, earlier payment is required pursuant to Section 8.6 (a)). Sellers' obligation to pay the Termination Fee shall become payable by Parent in accordance with Section 8.06(dsurvive termination of this Agreement and shall (x) constitute an administrative expense (which shall be a superpriority administrative expense claim senior to all other administrative expense claims other than administrative expense claims arising under the DIP Credit Agreement) of the Merger Agreement, Sellers under sections 503(b) and 507(a)(1) of the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; Bankruptcy Code and (cy) in be secured by a perfected second priority lien (junior only to the event that a Non-Defaulting Party’s (or the respective Guarantor’s) liabilities liens under the relevant Limited Guarantee become due and payable, DIP Credit Agreement) on 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Assets and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting Parties.proceeds thereof. ARTICLE IX

Termination Fee. 3.1 If Upon termination of this Agreement due to an Event of Default by Owner or by Owner in contravention of this Agreement or in those other circumstances provided in Articles 15.02(e) (failure to complete reconstruction after casualty), 16.02(b) (failure to complete reconstruction after condemnation) and 21.03 (transfer to Non-Qualified Person), Owner shall, in addition to all other amounts due and payable hereunder, pay to Manager a fee (the Merger is not consummated "Termination Fee") as set forth below as liquidated damages for its default. Owner's obligation to pay for all indemnification and defense claims (subject to Articles 14.01(c) and 14.02), to maintain insurance after termination (with respect to occurrences before termination) and to pay for all costs of operating the Parent Casino prior to termination shall be in addition to and shall survive termination of this Agreement and payment of the Termination Fee. The Termination Fee becomes that shall be payable by Parent pursuant Owner to Section 8.06(b) of Manager in the Merger Agreementevent of, and at the time of, termination of this Agreement due to any party hereto is a Defaulting Party (as defined below), notwithstanding anything Event of Default by Owner and in certain other circumstances provided under the Limited Guaranties, (a) the Defaulting Party for in this Agreement shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to three (3) times the Parent average amount of annual Management Fees earned in the twenty-four (24) Fiscal Months preceding termination, but, until the end of the third full Fiscal Year following the date hereof, not less than THIRTY TWO MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS 51 57 ($32,500,000), increased by the percentage increase in the CPI occurring between the date hereof and the date of termination. Notwithstanding the foregoing, if any default or event, action or omission by Owner giving rise to a termination by Manager results solely from an action or omission of Manager's Affiliate in its capacity as shareholder of Owner, or the action or omission of the directors of Owner elected by Manager's Affiliate, Manager shall not in any such event receive a Termination Fee to Parent by wire transfer in connection with such Event of same day fund within one (1) Business Day following the termination of the Merger Agreement pursuant to Section 8.03(a) Default 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 Agreementresulting termination. OWNER RECOGNIZES AND AGREES THAT IF THIS AGREEMENT IS TERMINATED FOR THE REASONS SPECIFIED HEREIN AS ENTITLING MANAGER TO RECEIVE A TERMINATION FEE, the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; and (c) in the event that a NonMANAGER WOULD SUFFER AN ECONOMIC LOSS BY VIRTUE OF THE RESULTING LOSS OF MANAGEMENT FEES WHICH WOULD OTHERWISE HAVE BEEN EARNED UNDER THIS AGREEMENT. BECAUSE SUCH FEES VARY IN AMOUNT DEPENDING ON THE GROSS REVENUES EARNED AT THE CASINO AND ACCORDINGLY WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN WITH CERTAINTY, THE PARTIES AGREE THAT THE TERMINATION FEE PROVIDED IN THIS AGREEMENT HAS BEEN DETERMINED TO CONSTITUTE A REASONABLE ESTIMATE OF LIQUIDATED DAMAGES TO MANAGER. IT IS AGREED THAT MANAGER SHALL NOT BE ENTITLED TO MAINTAIN A CAUSE OF ACTION AGAINST OWNER FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT OR ACTUAL DAMAGES IN EXCESS OF THE TERMINATION FEE IN ANY CONTEXT WHERE THE TERMINATION FEE IS PROVIDED BY THIS AGREEMENT TO BE MANAGER'S REMEDY, AND RECEIPT OF SUCH FEE TOGETHER WITH ALL OTHER AMOUNTS DUE AND PAYABLE BY OWNER TO MANAGER WITH RESPECT TO EVENTS OCCURRING PRIOR TO OR IN CONNECTION WITH THE TERMINATION OF THIS AGREEMENT AND MANAGER'S CONTINUING RIGHT TO INSURANCE COVERAGE, INDEMNIFICATION FOR PRE- AND POST-Defaulting Party’s (or the respective Guarantor’s) liabilities under the relevant Limited Guarantee become due and payableTERMINATION OCCURRENCES, 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 PartiesAND PROTECTION OF ITS PROPRIETARY SYSTEM MARKS BY INJUNCTIVE AND OTHER APPROPRIATE RELIEF SHALL BE MANAGER'S SOLE REMEDY AGAINST OWNER IN ANY SUCH CASE.

Termination Fee. 3.1 If the Merger is not consummated and the Parent Termination Fee becomes payable by Parent pursuant to Without limiting Section 8.06(b8.7(d) of the Merger XXX-STACK Purchase Agreement, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 XXX- STACK Holdings, LLC, a NonDelaware limited liability company (“Holdings”), or its designee shall receive full payment of a “Termination Fee” (as defined in the XXX-Defaulting PartySTACK Purchase Agreement) pursuant to Section 8.7(a) of the XXX-STACK Purchase Agreement, the receipt of such Termination Fee shall be deemed to be Buyer’s sole liability and entire obligation and Seller’s, FE-STACK’s (as defined in the XXX-STACK Purchase Agreement) and Holdings’ exclusive remedy for any and all losses or damages suffered or incurred by Seller, FE-STACK, Holdings, any of their respective Affiliates or any other Person in connection with this Agreement and the respective Guarantor’s) liabilities under XXX-STACK Purchase Agreement (and the relevant Limited Guarantee become due termination hereof and payablethereof), the Defaulting Party shall indemnify Transactions and the “Transactions” (as defined in the XXX-STACK Purchase Agreement) (and the abandonment thereof) or any matter forming the basis for such Non-Defaulting Party (or the respective Guarantor) in full for all payments made byterminations, and all fees and outnone of Seller, FE-ofSTACK, Holdings, 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, the XXX-pocket expenses incurred bySTACK Agreement, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations of the Defaulting Party under this Section 3.1, collectivelyTransactions, the “Default Obligations”). If there is more than one Defaulting PartyTransactions” (as defined in the XXX-STACK Purchase Agreement) or any matters forming the basis of such terminations, 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 all of which is such Defaulting Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting Partiesclaims, actions or proceedings are hereby waived.

Termination Fee. 3.1 If The Parties hereby acknowledge and agree that the Merger 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 not consummated and the Parent Termination Fee becomes payable terminated by Parent Seller pursuant to Section 8.06(b) of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below8.1(c), notwithstanding anything provided under Purchaser shall pay to Seller the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to 5% of the Parent Base Purchase Price (the “Reverse Termination Fee to Parent Fee”) within two Business Days following such termination by wire transfer of same day fund within one (1) Business Day following immediately available funds to an account specified by Seller in writing to Purchaser. The Reverse Termination Fee shall be the termination sole and exclusive remedy of Seller and its Affiliates with respect to such termination, including any Losses arising out of or related to the Merger breach or breaches giving rise to such termination. In the event that the Agreement is terminated by Purchaser pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) in 8.1(b), Seller shall pay to Purchaser the event any amount equal to 5% of the Company’s fees Base Purchase Price (the “Termination Fee”) within two Business Days following such termination by wire transfer of immediately available funds to an account specified by Purchaser in writing to Seller. The Termination Fee shall be the sole and expenses shall become payable exclusive remedy of Purchaser and its Affiliates with respect to such termination, including any Losses arising out of or 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 receiving the Termination Fee. Moreover, if this Agreement is terminated and such termination results in payment of the Reverse Termination Fee by Parent Purchaser in accordance with this Section 8.06(d) of the Merger Agreement8.3, the Defaulting Party Purchaser shall be responsible also reimburse Seller 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, any and all fees and out-of-pocket expenses Remodel Costs incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Partiesby Seller.

Termination Fee. 3.1 If the Merger is not consummated and the Parent Termination Fee becomes payable by Parent Company or Sellers terminate this Agreement pursuant to Section 8.06(b) of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below8.1(e), notwithstanding anything provided under the Limited GuarantiesSPAC will, within two (a2) Business Days after the Defaulting Party shall be responsible for date that sufficient monies or other assets have been released from the entire Parent Termination Fee payable by Parent under Section 8.06(b) of Escrow Account, pay the Merger Agreement and shall promptly pay Company an amount equal to the Parent $1,000,000 (“Termination Fee to Parent Fee”) by wire transfer of same day fund within one immediately available funds to an account designated by the Company; provided that: (1a) Business Day following Buyer and the 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; (c) the 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 the Company for the efforts and resources expended and opportunities foregone, and not a penalty. Notwithstanding anything to the contrary in this Agreement, the Company’s right to receive payment of the Termination Fee will be the sole and exclusive remedy of Sellers, the Company and their Affiliates against Buyer, the SPAC or their Affiliates or any of their respective shareholders or Representatives for any and all Losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to termination of the Merger this Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) in the event any 8.1(e), and upon payment of the Company’s fees and expenses shall become payable by Parent Termination Fee in accordance with this Section 8.06(d) 8.3 none of Buyer, the Merger 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, 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 (any ancillary documents 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 PartiesTransaction.

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) the Defaulting Party If Sellers terminate this Agreement pursuant to and in accordance with Section 10.01(d) or Section 10.01(e), then Purchaser shall pay or cause to be responsible for the entire Parent Termination Fee payable paid to Sellers to an account and in such proportion designated by Parent under Section 8.06(bNRGWG (on behalf of Sellers) of the Merger Agreement and shall promptly pay an amount equal at least two (2) Business Days prior to the Parent Termination Fee to Parent date of payment, by wire transfer of same day fund immediately available funds within one five (15) Business Day Days following the date of termination, an aggregate amount equal to $24,900,000 (the “Termination Fee”). Upon termination of the Merger this Agreement by Sellers 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(d10.01(d) of or Section 10.01(e), Sellers’ right to receive the Merger Agreement, the Defaulting Party Termination Fee shall be responsible for all such fees the sole and expenses payable by Parent; exclusive remedy of Sellers and their Affiliates against Purchaser and its Affiliates, Financing Sources and Representatives, and its and their respective Related Persons (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 including Purchaser 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default ObligationsPurchaser Parties”) for any Losses suffered as a result of any breach of or failure to 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 payment of such amount (as long as the Closing is not consummated), 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. If there is more than one Defaulting PartyNotwithstanding the foregoing, each Defaulting Party Sellers shall be responsible for its Pro Rata Portion permitted to seek both specific performance under Section 11.09 and payment of the Default ObligationsTermination Fee; provided, however, in no event shall Sellers be entitled both to receive the Termination Fee and to a grant of specific performance under Section 11.09. A Defaulting Party’s “Pro Rata Portion” for Notwithstanding anything in this Agreement to the purposes contrary, under no circumstances (as long as the Closing does not occur) will Sellers and their respective Related Persons, in the aggregate, be entitled to (i) monetary damages or other Losses in excess of this Section 3.1 (or, where the Termination Fee is a fractionpayable, other than) the numerator amount of which is such Defaulting Party’s Contemplated Ownership Percentage and the denominator Termination Fee, or (ii) monetary damages, Losses or other recourse of which is any kind (including the aggregated Contemplated Ownership Percentage of all Defaulting PartiesTermination Fee) from any Purchaser Party other than Purchaser and, solely to the extent set forth in the Limited Guarantee, Purchaser Guarantor.

Termination Fee. 3.1 If this Agreement is validly terminated by the Merger is not consummated Company pursuant to (A) Section 8.1(g), (B) Section 8.1(c), or (C) Section 8.1(e) and at the Parent Termination Fee becomes payable by Parent time of such termination pursuant to Section 8.06(b8.1(e) of the Merger Agreement, and any party hereto is a Defaulting Party Company had the right to validly terminate this Agreement pursuant to (as defined belowx) Section 8.1(c), notwithstanding anything provided under or (y) Section 8.1(g), then Purchaser will pay the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay Company an amount equal to $46,666,667 (the Parent “Termination Fee to Parent Fee”) by wire transfer of same day fund immediately available funds within one three (13) Business Day following Days after the termination date of the Merger Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) in the event any of such termination. Without limiting the Company’s fees and expenses shall become payable by Parent in accordance with Section 8.06(d) right to obtain an award 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 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 fees and 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 byin connection with such Claim (the “Termination Fee Claim Expenses”) and (y) to 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 Non-Defaulting Party payment was required to be made hereunder through the date of payment (such interest payment, together with the Termination Fee Claim Expenses, the “Enforcement Costs”). Notwithstanding anything to the contrary set forth herein, but subject in all respects to the provisions of Section 10.16(b), the Sellers and the Company may pursue the remedies permitted pursuant to Section 10.16 at any time, and any election to pursue such remedies shall in no way modify or the respective Guarantor) under such Limited Guarantee (amend the obligations of Purchaser to pay the Defaulting Party under Termination Fee and/or the Enforcement Costs pursuant to this Section 3.18.4; provided that notwithstanding anything to the contrary herein or otherwise, collectivelyin no event shall the Enforcement Costs payable pursuant to this Section 8.4 exceed $1,500,000 in the aggregate. Purchaser acknowledge and agree that the agreements contained in this ‎Section 8.4 are an integral part of the transactions contemplated hereby, and that without these agreements, the “Default Obligations”). If there is more than one Defaulting PartyCompany, 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 Blocker Corp and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting PartiesSellers would not have entered into this Agreement.

Termination Fee. 3.1 If Parent affirms and agrees that any Termination Fee under the Merger is not consummated Agreement and the Parent Termination Fee becomes any amounts payable by Parent pursuant to Section 8.06(b8.2(c) of the Merger Agreement received by Parent, will, in accordance with the terms of the “Bank and Bridge Facilities Fee Letter” dated the Cadet Signing Date, first be shared ratably among Parent, the Crestview Investor, the Macquarie Investor and the lenders under the Debt Commitment Letters to reimburse their respective reasonable and documented expenses in connection with the transactions contemplated by this Agreement and the Merger Agreement and, after payment of such expenses, will be shared pro rata among Parent, the Crestview Investor and the Macquarie Investor based on each such Party’s respective Investment Percentage (but adjusted taking into account the foregoing expense reimbursement of the Parties so that, in total, each such Party receives its pro rata share based upon its respective Investment Percentage of total amounts received by such Parties hereunder) (and Parent will direct the Company to pay to each such Investor directly such Investor’s pro rata portion of the Termination Fee and any amounts payable pursuant to Section 8.2(c) of the Merger Agreement to be received by such Investor in accordance with the foregoing), except that any Failing Investor or Withdrawn Investor shall not share in any portion of the Termination Fee or any amounts payable pursuant to Section 8.2(c) of the Merger Agreement, and any party hereto such Failing Investor’s or Withdrawn Investor’s share shall be apportioned between Parent, on the one hand, and the Crestview Investor (if the Macquarie Investor is a Defaulting Party the Failing Investor or Withdrawn Investor) or the Macquarie Investor (as defined belowif the Crestview Investor is the Failing Investor or Withdrawn Investor), notwithstanding anything as the case may be, on the other, as provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Partiessentence.

Termination Fee. 3.1 If the Merger (x) this Agreement is not consummated and the Parent Termination Fee becomes payable terminated by Parent or the Company pursuant to Section 8.06(b11.01(b)(iii), (y) Parent breaches its obligations under Section 7.02 or Section 8.01 of this Agreement and (z) Parent consummates an Initial Business Combination (other than with the Company), Parent shall pay to the Company, within two Business Days of such consummation, $5,000,0000 in cash, shares of Parent Stock or combination thereof, at Parent’s election. The number of shares of Parent Stock deliverable in respect of the Merger amount elected by the Parent to be delivered in shares of Parent Stock shall equal (x) such amount divided by (y) the Average Stock Price as of the date of such consummation, provided that no fractional shares shall be delivered and that cash shall be paid in lieu of any fractional shares. The receipt of such cash or shares of Parent Stock, as the case may be, shall be the exclusive remedy of the Company, Sellers and their respective Affiliates with respect to such breach and they shall have waived any other rights and claims they may have against Parent and its Affiliates, whether in law or in equity, relating to this Agreement, the other Transaction Documents or the transactions contemplated hereby and any party hereto is a Defaulting Party thereby, following receipt of such cash or shares of Parent Stock. Notwithstanding the foregoing, if prior to ten (as defined below), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund within one (110) Business Day Days immediately 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 this Agreement, the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; and (c) Company notifies Parent in writing that it believes in good faith that Parent has committed a willful breach of this Agreement, then the obligation of Parent set forth 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 first sentence of this Section 3.1 is a fraction, the numerator of which is such Defaulting Party’s Contemplated Ownership Percentage 11.03 shall not come into effect and the denominator Company shall have the right to pursue its remedies for willful breach of which is the aggregated Contemplated Ownership Percentage of all Defaulting Partiesthis Agreement against Parent, subject to other limitations set forth in this Agreement.

Termination Fee. 3.1 If It is acknowledged and agreed by Seller and Buyer that Seller has removed the Merger is not consummated and Purchased Assets from the Parent Termination Fee becomes payable by Parent pursuant to Section 8.06(b) open market during the term of the Merger this Agreement, and thereby has exposed itself to unknown market risks. Therefore, if all of the conditions precedent set forth in Articles 5 and 6 of this Agreement, other than the condition precedent set forth in Section 5.7, shall have been satisfied or waived and this Agreement is terminated pursuant to subclause (d) of Section 10.1 by reason of the failure of the condition precedent in Section 5.7, and Seller shall be released from any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under obligation to sell the Limited Guaranties, Purchased Assets to Buyer and Buyer and RDI shall be released from any obligation to purchase the Purchased Assets. Seller and Buyer also acknowledge and agree that (a) it would be extremely difficult or impracticable to compute Seller’s actual losses as a result of such failure to consummate the Defaulting Party shall be responsible for the entire Parent Termination Fee payable transactions contemplated by Parent under Section 8.06(b) of the Merger Agreement this Agreement, and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 that the event any amount of the Company’s fees Deposit is a reasonable estimate of what such losses will be. As such, as a material inducement to Seller to enter into and expenses shall become payable by Parent in accordance with Section 8.06(d) of the Merger perform its obligations under this Agreement, the Defaulting Party parties agree that if this Agreement is terminated prior to the Closing pursuant to subclause (d) of Section 10.1 solely by reason of the failure of the condition precedent set forth in Section 5.7 above, Seller shall be responsible entitled to retain the Deposit (without interest thereon) as a termination fee and as Seller’s sole and exclusive remedy for all such fees and expenses payable by Parent; and (c) termination under this Agreement, at law or in equity. BUYER:/s/ SCT SELLER:/s/ AJS In the event that a Non-Defaulting Party’s this Agreement is terminated and Seller shall become entitled to retain the Deposit pursuant to this Section 10.2, Seller shall pay to Buyer, within five (or the respective Guarantor’s5) liabilities under the relevant Limited Guarantee become due and payableBusiness Days of such termination, the Defaulting Party shall indemnify such Non-Defaulting Party (or Interest Factor on the respective Guarantor) Deposit as provided for in full for all payments made bySection 2.1.1. Notwithstanding anything to the contrary contained in this Agreement, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting Party (or for the respective Guarantor) under such Limited Guarantee (the obligations avoidance of the Defaulting Party under this Section 3.1, collectivelydoubt, the “Default Obligations”). If there parties acknowledge and agree that the condition precedent set forth in Section 5.6 may only be satisfied concurrently with the Closing and that, if the condition precedent set forth in Section 5.7 is more than one Defaulting Partynot satisfied or waived, each Defaulting Party the condition precedent set forth in Section 5.6 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 Partiesdeemed to be waived by Buyer.

Termination Fee. 3.1 If In recognition of the considerable time and expense that the Shareholders have expended and will expend in entering into this Agreement and the other transactions contemplated hereby, and in order to induce the Shareholders to enter into such transactions, in the event the Merger is not consummated due to the failure by the Purchaser to meet the conditions set forth in Article VIII above or the failure by the Purchaser to use its commercially reasonable efforts to meet such conditions, the Purchaser shall promptly pay to the Shareholders (pro-rata) in cash the sum of One Million Dollars ($1,000,000) (the "Termination Fee"), which fee shall be full and complete compensation to the Parent Shareholders as a result of such failure and, upon the making of such payment (provided such payment is timely made in accordance with the terms of this Agreement), there shall be no further obligation to the Shareholders by the Purchaser pursuant to this Agreement; provided, however, the Termination Fee becomes payable by Parent pursuant to Section 8.06(b) of shall not be paid in the event the Merger Agreement, and any party hereto is not consummated as a Defaulting Party result of: (i) a Termination Event (as defined belowin Section 8.2(a), notwithstanding anything provided under or (ii) the Limited Guaranties, discovery by Purchaser of facts not known to Purchaser as of the effective date of this Agreement that indicate that the Shareholders or the Company have violated existing law with respect to the conduct of the Company's business which violation (a) the Defaulting Party shall results in or could reasonably be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) expected to result in increased expenses or liabilities of the Merger Agreement and shall promptly pay an amount equal to Company which total in the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day following the termination of the Merger Agreement pursuant to Section 8.03(a) aggregate $1,375,000 or Section 8.03(b) thereof; more, or (b) if such violation is not quantifiable as to dollar amount, results in or could reasonably be expected to result in a substantial detrimental effect on the event any business of the Company’s fees . In the event Purchaser determines that the Termination Fee is not payable pursuant to clause (i) or (ii) above, it shall provide written notice of such determination to the Shareholders within five (5) business days following demand therefor by the Shareholders, which notice shall set forth with specificity the basis upon which Purchaser has made such termination (including all facts available to Purchaser with respect thereto). The parties hereto acknowledge and expenses shall become payable by Parent agree that, other than as provided in accordance with this Section 8.06(d) of the Merger Agreement12.4, the Defaulting Party Purchaser's obligation to pay the Termination Fee shall not 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 subject to other conditions precedent to Purchaser's obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 PartiesAgreement.

Termination Fee. 3.1 If Pursuant to the Merger is not consummated and Tender Offer Agreement, in the Parent Termination Fee becomes payable by Parent event (A) the Purchaser terminates the Tender Offer Agreement pursuant to Section 8.06(bclause (e)(i) through (e)(v) of the Merger Agreement, and any party hereto is a Defaulting Party preceding paragraph or (as defined below), notwithstanding anything provided under the Limited Guaranties, (aB) the Defaulting Party shall be responsible for Company is not at such time in material breach of the entire Parent Termination Fee payable by Parent under Section 8.06(bTender Offer Agreement and terminates the Tender Offer Agreement pursuant to clause (d)(ii) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 Agreementpreceding paragraph, the Defaulting Party shall be responsible Company will reimburse the Purchaser and its affiliates (not later than one business day after submission of statements together with reasonable documentation therefor) 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 fees and expenses actually incurred byby any of them or on its behalf in connection with the Offer and the proposed consummation of all transactions contemplated by the Tender Offer Agreement (including, without limitation, costs of advertising, filing fees and fees payable to legal counsel, financial printers, financing sources, investment bankers, counsel to any of the foregoing, and accountants); provided, that in the event the Purchaser or its affiliates seek and obtain payment under these circumstances, the Company shall not be additionally liable for consequential or speculative damages arising from such Non-Defaulting termination. If, (i) (A) the Purchaser terminates the Tender Offer Agreement pursuant to clause (e)(i) through (e)(v) of the preceding paragraph or (B) if the Company terminates the Tender Offer Agreement pursuant to clause (d)(i)(C) of the preceding paragraph and, within nine months thereafter, the Company enters into an agreement, letter of intent or binding arrangement with respect to a Third Party Acquisition, or a Third Party Acquisition occurs or (ii) the Company terminates the Tender Offer Agreement pursuant to clause (d)(ii) of the preceding paragraph, then in either case the Company will reimburse, in cash, the Purchaser within one business day following the execution and delivery of such agreement or letter of intent or the respective Guarantorentering into of such an arrangement or the occurrence of such Third Party Acquisition, as the case may be, or simultaneously with such termination pursuant to clause (d)(ii) under such Limited Guarantee of the preceding paragraph for all out-of-pocket fees and expenses actually incurred by or on behalf of Purchaser in connection with the Offer and the proposed consummation of all the transactions contemplated by the Tender Offer Agreement (including, without limitation, costs of advertising, filing fees and fees payable to legal counsel, financial printers, financing sources, investment bankers, counsel to any of the foregoing and accountants) not in excess of $100,000 (the obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”"Termination Fee"). 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.

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) In the Defaulting Party shall be responsible for event that either: (X) the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal MGM Entities are entitled to the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day following the termination of the Merger terminate this Agreement pursuant to Section 8.03(a10.1(d) hereof, or (Y) (i) the Closing has not occurred by the Outside Closing Date, and (ii) each of the Closing conditions set forth in Section 7.1 have been satisfied or waived by Purchaser or would have been satisfied but for Purchaser’s failure to use its Commercially Reasonable Efforts (or a higher standard if a higher is expressly contemplated hereby) 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 55 been satisfied but for Purchaser failing to use its Commercially Reasonable Efforts (or a higher standard if a higher is expressly contemplated hereby) to perform its respective obligations under this Agreement in accordance with the terms and conditions hereof, and (iv) the MGM Entities are not otherwise in breach or default hereunder, then in either such event (X) or (Y) the MGM Entities shall 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 (which shall occur automatically on such fifth Business Day unless agreed to otherwise by the Parties in writing) Purchaser shall pay, or cause to 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 the Termination Fee pursuant to this Section 8.03(b6.14(a) thereof; shall be guaranteed by Purchaser Parent pursuant to the Purchaser Guaranty. Subject to the occurrence of the matters set forth in subsections (bX) or (Y)(i), (ii) and (iii) 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 any the sale of the CompanyEquity Interests to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser’s fees failure to close, 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) Seller’s actual damages in the event that the sale of the Equity Interests to Purchaser as contemplated by this Agreement is not consummated as a Non-Defaulting Partyresult of Purchaser’s (failure to close would be difficult 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 byimpractical to determine, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations Termination Fee represents a reasonable estimate of the Defaulting Party under this Section 3.1, collectively, harm likely to be suffered by Seller in the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion event the sale of the Default Obligations. A Defaulting PartyEquity Interests to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser’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 Partiesfailure to close.

Termination Fee. 3.1 If To induce Purchaser and Guarantors to execute this Agreement and in consideration thereof, Chase hereby guarantees the Merger payment obligation of Leavxxx xx pay to Purchaser the Leavxxx Xxxmination Fee as provided in Section 11.3.3, when and if due. The guaranty set forth herein by Chase is absolute, unconditional, a guarantee of payment, may not consummated be revoked by Chase and shall continue to be effective after any attempted revocation by Chase and shall not be subject to set-off, counterclaim, reduction, recoupment, reduction or dimuntion, or any defense of any kind or nature that Chase or Leavxxx xxx have against Purchaser or any other party or that Chase may have against Leavxxx xx any other party. In the Parent Termination event of default by Leavxxx xx payment of the Leavxxx Xxxmination Fee, or any part thereof, when the Leavxxx Xxxmination Fee becomes payable by Parent pursuant due, Chase shall, on demand, and without further notice of dishonor and without any notice having been given to Section 8.06(b) Chase previous to such demand of the Merger acceptance by Purchaser of this Agreement, and without any party hereto is a Defaulting Party (notice having been given to Chase previous to such demand of the creating or incurring of the Leavxxx Xxxmination Fee, pay the amount due herein to Purchaser at its office as defined below)set forth in this Agreement, notwithstanding anything provided under the Limited Guarantiesand it shall not be necessary for Purchaser, (a) the Defaulting Party shall be responsible in order to enforce such payment by Chase, first, to institute suit or exhaust its remedies against Leavxxx xx others liable for the entire Parent Termination Fee payable by Parent Leavxxx Xxxmination Fee, to have Leavxxx xxxned with Chase in any suit brought under Section 8.06(b) this Agreement or to enforce its rights against any security which shall ever have been given to secure such fees. Chase expressly agrees to be primarily liable therefor jointly and severally with Leavxxx xx extent of its guaranty set forth herein. Chase agrees that Leavxxx xxx modify the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer terms of 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 this 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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.other than

Termination Fee. 3.1 If In the Merger is not consummated and event of any termination of this Agreement by (x) (i) Mercantile Sub under Section 9.01(k) or (ii) by Royal Palm under Section 9.01(k) Royal Palm shall pay promptly, but in no event later than two (2) business days after the Parent date of such termination, to Mercantile a fee equal to $1,300,000 (the “Termination Fee becomes payable Fee”) in cash, by Parent wire transfer, in immediately available funds to an account designated by Mercantile; or (y) either party pursuant to Section 8.06(b9.01(b) or 9.01(g) and if, and only if, following the date hereof and prior to the termination of the Merger this Agreement, Royal Palm receives an Acquisition Proposal and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under the Limited Guaranties, A) within twelve (a12) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day months following the termination of this Agreement the Merger Agreement pursuant to Section 8.03(atransaction contemplated by the Acquisition Proposal is consummated or (B) or Section 8.03(bwithin twelve (12) thereof; (b) in months following the event any termination of the Company’s fees and expenses shall become payable by Parent in accordance with Section 8.06(d) of the Merger this Agreement, Royal Palm enters into an agreement based upon the Defaulting Party Acquisition Proposal and the transaction contemplated thereby is consummated within twelve (12) months following the termination of this Agreement; then Royal Palm shall be responsible reimburse Mercantile Sub 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 documented out-of-pocket fees and expenses reasonably incurred byby it and Mercantile in connection with this Agreement and the transactions contemplated hereby (including fees and other amounts payable to banks, such Non-Defaulting Party (or the investment bank firms and other financial institutions and their respective Guarantoragents and counsel) under such Limited Guarantee and all fees of counsel, accountants, financial experts and consultants to Mercantile and/or Mercantile Sub (the obligations “Expenses”) in cash or by wire transfer no later than two (2) business days after the consummation of such transaction; provided that the Expenses paid by Royal Palm shall not exceed $250,000. Royal Palm acknowledges that the agreements contained in this Section 9.03 are an integral part of the Defaulting Party under transactions contemplated in this Agreement, and that, without these agreements, Mercantile and Mercantile Sub would not enter into this Agreement; accordingly, if Royal Palm fails to promptly pay the amount due pursuant to this Section 3.19.03, collectivelyand, in order to obtain such payment, Mercantile commences a suit which results in a judgment against Royal Palm for the “Default Obligations”). If there is more than one Defaulting PartyTermination Fee or Expenses, each Defaulting Party as the case may be, then Royal Palm shall be responsible for pay to Mercantile its Pro Rata Portion costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the Default Obligations. A Defaulting Party’s “Pro Rata Portion” for fee at the purposes rate 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 Parties10% per annum.

Termination Fee. 3.1 If It is understood by the Merger is not consummated and parties hereto that the Parent Termination Fee becomes shall only become due and payable to the Buyer if (i) 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 Parent 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 by the Seller pursuant to Section 8.06(b) 11.1.3(ii), the Seller agrees to or enters into an agreement to sell or transfer the Business, whether through a sale of all, or substantially all, of the Merger Agreementownership interests of the Seller (however characterized) or any successor thereto, or through a sale of all, or substantially all, of the assets of the Seller or any successor thereto, with the Person making the Superior Proposal or such Person’s Affiliate (a “Third Party Sale”) and any party hereto is a Defaulting the Third Party (as defined below), notwithstanding anything provided under Sale ultimately closes. The Seller acknowledges and agrees that the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) represents the Parties’ best estimate of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of 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 costs incurred byby the Buyer and the value of management time, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations overhead, opportunity costs and other unallocated costs of the Defaulting Party under Buyer incurred by or on behalf of the Buyer in connection with this Section 3.1Agreement. The Seller further acknowledges that the provisions for the payment of this Termination Fee are an integral part of the transaction contemplated by this Agreement and that, collectivelywithout these provisions, the “Default Obligations”)Buyer would not have entered into this Agreement. If there is more than one Defaulting Party, each Defaulting Party Payment of the Termination Fee shall be responsible for its Pro Rata Portion made in immediately available funds payable at the closing of the Default ObligationsThird Party Sale. A Defaulting Party’s “Pro Rata Portion” Seller, and its principal commercial lenders, Spring Capital and BIA Digital (jointly), shall fully indemnify Buyer for any and all costs, including the purposes payment of this Section 3.1 is a fractionany attorneys’ fees, incurred in connection with the numerator collection and enforcement of which is such Defaulting Party’s Contemplated Ownership Percentage and any judgment relating to the denominator non-payment of which is the aggregated Contemplated Ownership Percentage of all Defaulting PartiesTermination Fee.

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) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day following the termination of the Merger If Buyer terminates this Agreement pursuant to Section 8.03(a9.1(e) of this Agreement or SB terminates this Agreement pursuant to Section 8.03(b9.1(f) thereof; of this Agreement, then SB shall, on the date of termination, pay to Buyer the sum of $11.50 million (the “Termination Fee”). The Termination Fee shall be paid to Buyer in same day funds. SB hereby waives any right to set-off or counterclaim against such amount. (b) in In the event that (i) an Acquisition Proposal with respect to SB shall have been communicated to or otherwise made known to the shareholders, senior management, or board of directors of SB, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to SB after the date of this Agreement, (ii) thereafter this Agreement is terminated (A) by SB or Buyer pursuant to Section 9.1(d) (only if the Requisite SB Shareholder Approval has not theretofore been obtained), (B) by Buyer pursuant to Section 9.1(e), or (C) by SB or Buyer pursuant to Section 9.1(c)(iii), and (iii) prior to the date that is 12 months after the date of such termination, SB consummates an Acquisition Transaction or enters into an Acquisition Agreement, then SB shall on the earlier of the Company’s fees and expenses shall become payable by Parent date an Acquisition Transaction is consummated or any such Acquisition Agreement is entered into, as applicable, pay Buyer a fee equal to the Termination Fee in accordance with Section 8.06(d) same day funds. For the avoidance of the Merger Agreementdoubt, the Defaulting Party Buyer shall be responsible for all entitled to no more than one Termination Fee. SB hereby waives any right to set-off or counterclaim against such fees and expenses payable by Parent; and amount. (c) The Parties acknowledge that the agreements contained in this Article 9 are an integral part of the event transactions contemplated by this Agreement, and that a Non-Defaulting Party’s without these agreements, they would not enter into this Agreement; accordingly, if SB fails to pay promptly any fee payable by it pursuant to this Section 9.3, then SB shall pay to Buyer its reasonable costs and expenses (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 Guarantorincluding reasonable attorneys’ fees) in full for all payments made byconnection with collecting such Termination Fee, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting Party (or together with interest on the respective Guarantor) under such Limited Guarantee (the obligations amount of the Defaulting Party 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 Section 3.1, collectively, Agreement until the “Default Obligations”)date of payment. 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.9.4

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) In the Defaulting Party shall be responsible for event that (i)(A) the entire Parent Termination Fee payable Closing fails to occur due to a breach by Parent under Section 8.06(b) of Purchaser hereunder that gives rise to a right to terminate the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day following the termination of the Merger Agreement pursuant to Section 8.03(a12.01(d) (regardless of whether the Agreement is terminated by Purchaser pursuant to Section 12.01(b)(i)) or (B) the Purchaser fails to deliver all or any portion of the Aggregate Consideration at the Closing or the Reconveyance Amount to the Title Company (each as defined in the Xxxxxxx County Lease) at or before the Closing and (ii) all of the conditions to Purchaser's obligations to proceed with the Closing under ARTICLE 7 have been satisfied or waived (other than (x) such conditions which by their nature are to be satisfied on the Closing Date, but assuming such condition were capable of being satisfied as of the date of termination, and (y) such conditions that Purchaser's breach have caused not to be satisfied) and Purchaser has failed to consummate the Closing within two (2) days after the Closing should have occurred pursuant to Section 8.03(b2.03 (but failed to occur due to such breach by Purchaser) thereof; (bcollectively, a "Purchaser Failure to Close"), then Purchaser (or the Purchaser Guarantor pursuant to the Purchaser Guarantee) shall, upon termination of this Agreement by the Seller pursuant to Section 12.01(d), pay to Seller in immediately available funds by wire transfer no later than two (2) Business Days after a written demand by Seller therefor, a fee of thirty-five million dollars ($35,000,000.00) (the "Termination Fee"), as liquidated damages and not as a penalty, it being understood that in no event shall Purchaser be required to pay the Termination Fee on more than one occasion. Notwithstanding anything contained herein to the contrary, subject to the terms set forth herein and in the Purchaser Guaranty and the Equity Commitment Letter, (i) Seller shall have all rights and remedies existing at law or in equity and shall have the right to pursue all legal and equitable remedies that may be available to Seller against Purchaser to receive specific performance of the terms of this Agreement, including upon a Purchaser Failure to Close and (ii) in the event there is a Purchaser Failure to Close and Seller demands and receives the Termination Fee from Purchaser (or the Purchaser Guarantor pursuant to the Purchaser Guarantee), the payment of the Termination Fee shall be the sole remedy of Seller and its Affiliates against any member of the Purchaser Group for, and no member of the Purchaser Group shall have, any liability or obligation for, and Seller and its Affiliates shall not otherwise make any Claim for, any matter under, relating to or arising out of, the transactions contemplated pursuant to this Agreement, the Purchaser Guarantee, the Equity Commitment Letter or any other Contract, document or agreement delivered pursuant to this Agreement, whether based on contract, tort, strict liability, other Applicable Laws or otherwise, or any Claim, based on, in respect of, or by reason of any of the Company’s fees and expenses shall become payable by Parent in accordance with Section 8.06(d) foregoing. For the avoidance of doubt, if Seller pursues specific performance of the Merger terms of this Agreement, it shall not be deemed to waive its right to demand payment of the Defaulting Party Termination Fee at any time thereafter; provided, that Seller shall be responsible for all such fees and expenses payable by Parent; and (c) in not demand payment of the event that a Non-Defaulting Party’s (or Termination Fee if an order of specific performance to consummate the respective Guarantor’s) liabilities under Closing pursuant to 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 byterms of this Agreement has been granted, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations Seller shall not pursue specific performance of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 terms of this Section 3.1 is a fraction, Agreement after it has demanded and received 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 PartiesTermination Fee.

Termination Fee. 3.1 If In the Merger event that this letter is not consummated and the Parent Termination Fee becomes payable by Parent terminated pursuant to Section 8.06(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 deliver the Purchase Agreement within the time period specified in Section 2 in material breach of such Party’s obligations under this letter, then the Merger Agreement, and any party hereto is a Defaulting breaching Party shall pay to the other Party an amount in the aggregate equal to $6,000,000 (as defined belowthe “Termination Fee”), notwithstanding anything provided under the Limited Guaranties, (a) the Defaulting Party which shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund immediately available funds within one three (13) Business Day Days following receipt of written payment instructions from the termination other Party. For the avoidance of doubt, the Merger Agreement pursuant amount described in this Section 5(d) shall not be payable by either Party, and neither Party shall otherwise be deemed to Section 8.03(a) or Section 8.03(b) thereof; (b) be in breach of its obligations under this 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 Company’s fees and expenses shall become payable by Parent Parties to seek specific performance or other equitable relief in accordance with Section 8.06(d7(m), a Party’s right to receive the Termination Fee pursuant to this Section 5(d) shall be its sole and exclusive remedy 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 equitable remedies) with respect to, (i) any failure of the transactions contemplated by this letter to be consummated and (ii) any other breach by any other Party of its 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 the transactions contemplated hereby or thereby, and 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, or seek to pursue any other recovery, judgment, damages or remedy (including any equitable remedy) of the Merger Agreementany kind, in connection with this letter, 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 (Purchase Agreement 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 obligations any of the Defaulting Party under transactions contemplated hereby or thereby. The Parties agree that the Termination Fee and the agreements contained in this Section 3.1, collectively, the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion 5(d) are an integral part of the Default Obligations. A Defaulting Party’s “Pro Rata Portion” for the purposes of transactions contemplated by this Section 3.1 is a fraction, the numerator of which is such Defaulting Party’s Contemplated Ownership Percentage letter and the denominator of which is Purchase Agreement and that the aggregated Contemplated Ownership Percentage of all Defaulting PartiesTermination Fee constitutes liquidated damages and not a penalty.

Termination Fee. 3.1 If In the Merger is not consummated and event that Parent Group on the Parent Termination Fee becomes payable one hand or LED Supply on the other refuses to consummate the transactions contemplated by Parent this Agreement after the execution of the this Agreement, other than through the termination of this Agreement pursuant to Section 8.06(b) Sections 9.1, 9.2 , 9.3 or 9.4 hereof, as applicable, such party shall be in breach of this Agreement (the Merger Agreement, and any party hereto is a Defaulting Party (as defined below“Breaching Party”), notwithstanding anything provided under the Limited Guaranties, (a) Breaching Party on one hand shall pay to the Defaulting non-Breaching Party shall be responsible for on the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay other a termination fee in an amount equal to Two Million Dollars ($2,000,000) (the Parent “Termination Fee”); provided that if a Termination Fee to Parent by wire transfer of same day fund within one (1as defined in the PURO Merger Agreement) Business Day following the termination of the Merger Agreement is paid 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 PURO Merger Agreement, the Defaulting Termination Fee as contemplated in this Section 9.7 shall not be payable (the intent being that a Termination Fee (as defined herein or in the PURO Merger Agreement) shall be payable only once pursuant to this Agreement or the PURO Merger Agreement and that the aggregate amount recoverable in respect of a termination fee pursuant to this Section 9.7 and Section 9.7 of the PURO Merger Agreement shall be limited to an aggregate of $2,000,000). Any Termination Fee shall be paid by a wire transfer of immediately available funds to an account designated by the non-Breaching Party on the Business day immediately following the date of termination of this Agreement. The parties acknowledge and agree that the agreements contained in this Section 9.7 are an integral part of the transactions contemplated by this Agreement, and without these agreements, the parties would not enter into this Agreement; accordingly, if the non-Breaching Party fails to timely pay the Termination Fee pursuant to this Section 9.7, and in order to obtain payment, the non-Breaching Party commences any action, suit or proceedings which results in a judgment against the Breaching Party, the Breaching Party shall be responsible for all such fees pay the non-Breaching Party its reasonable 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 documented out-of-pocket costs and expenses incurred by(including reasonable and documented attorneys’ fees) in connection with such action, suit or proceeding. The parties agree that (except in the case of Fraud or any willful breach of any representation, warranty or covenant or agreement contained herein occurring prior to such Nontermination and except for the parties’ rights under Article 10), upon termination of this Agreement under the circumstances that entitle the non-Defaulting Breaching Party to the Termination Fee, the Termination Fee shall be the sole and exclusive remedy available to the non-Breaching Party and its Affiliates against the non-Breaching Party and its Affiliates for all Losses suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon the payment of the Termination Fee in such circumstances (except in the case of Fraud or any willful breach of any representation, warranty or covenant or agreement contained herein occurring prior to such termination and except for the parties’ rights under Article 10) the Breaching Party shall have no further liability or obligation relating to or arising out of this Agreement or the respective Guarantor) under such Limited Guarantee (transactions contemplated hereby; provided, that any Termination Fee received by the obligations non-Breaching Party shall reduce the amount of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). If there is more than one Defaulting damages payable by any Breaching Party, each Defaulting Party shall be responsible for its Pro Rata Portion if any, in respect 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 any such Defaulting Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting PartiesFraud or willful breach.

Termination Fee. 3.1 If the Merger is (1) First Indiana terminates this Agreement pursuant to (i) Section 8.01(e) (at a time when Somerset could not consummated and the Parent Termination Fee becomes payable by Parent also terminate pursuant to Section 8.06(b8.01(e)) of the Merger Agreement, and any party hereto is a Defaulting Party or (as defined belowii) Section 8.01(f), notwithstanding anything provided under the Limited Guarantiesthen, (a) the Defaulting Party within five business days of such termination, Somerset shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent First Indiana by wire transfer in immediately available funds a fee of same day fund within one One Million Dollars (1$1,000,000) Business Day following (the termination of the Merger "Fee"). If Somerset terminates this Agreement pursuant to Section 8.03(a8.01(e) or (at a time when First Indiana could not also do so pursuant to Section 8.03(b) thereof; (b) 8.01(e), then, within five business days of such termination, First Indiana shall pay the Fee to Somerset by wire transfer in the event any immediately available funds. If Somerset terminates this Agreement solely by reason of the Company’s fees and expenses shall become payable by Parent in accordance with Section 8.06(d) failure of Somerset to receive shareholder approval 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 byMerger, and all fees and out-of-pocket expenses incurred byif, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations within twelve months of the Defaulting Party under this Section 3.1date of such termination by Somerset, collectivelya change in control of Somerset is consummated, then Somerset shall pay the “Default Obligations”)Fee to First Indiana by wire transfer in immediately available funds. 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 (For purposes of this Section 3.1 8.03, a "change in control" shall be deemed to have taken place if: (w) any person or entity, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, other than Somerset or First Indiana, or a group consisting of Xxxxxx X. XxXxxxxx and Xxxxx XxXxxxxx, or a Subsidiary of Somerset, or a Subsidiary of First Indiana, or any employee benefit plan of Somerset or First Indiana or any of their respective Subsidiaries, is or becomes the beneficial owner, directly or indirectly, of securities representing fifty percent (50%) or more of the then-issued and outstanding common stock of Somerset or the combined voting power of the then-outstanding securities of Somerset, whether through a fractiontender offer or otherwise; (x) there occurs any consolidation or merger in which Somerset is not the continuing or surviving corporation (except for a merger in which the holders of Somerset's common and/or other voting stock immediately prior to the merger have the same proportionate ownership of common and/or other voting stock of the surviving corporation immediately after the merger); (y) there occurs any consolidation or merger in which Somerset is the surviving corporation but in which shares of its common and/or other voting stock would be converted into cash or securities of any other corporation or other property; or (z) there occurs any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the numerator assets of which is such Defaulting Party’s Contemplated Ownership Percentage Somerset.) Notwithstanding the foregoing, no Fee shall be required to be paid if First Indiana or Somerset terminates this Agreement solely because of the failure of either party to obtain shareholder approval of this Agreement and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting Partiesactions and transactions contemplated hereby.

Termination Fee. 3.1 If the Merger is not consummated and the Parent Termination Fee becomes payable by Parent (a) Buyer terminates this Agreement pursuant to Section 8.06(b10.1(e) of the Merger Agreement, and any party hereto is a Defaulting Party or (as defined belowb) Sellers terminate this Agreement pursuant to Section 10.1(c)(i) or (ii), notwithstanding anything provided under the Limited Guaranties, in either case of subsection (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(bor (b) of this Section 10.3 on or before 45 days after the Merger 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 shall promptly pay an amount equal 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 Parent Termination Fee Companies with respect to Parent 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 9.2 have been satisfied 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 by wire transfer of same day fund within one immediately available funds (1allocated in the manner as Sellers instruct) Business Day following the termination immediately upon Sellers’ demand and without any right of setoff. Upon payment of the Merger applicable amount, Buyer will be fully released and discharged from any and all Damages resulting from its failure to close the transactions contemplated by this Agreement and for any breach or failure giving rise to Sellers’ termination pursuant to Section 8.03(a10.1(c). Sellers and Buyer agree that: (i) or the agreement set forth in this Section 8.03(b10.3 is an integral part of this Agreement, (ii) thereof; (b) in the event any amount of the Company’s fees fee provided in this Section 10.3 is reasonable and expenses shall become payable by Parent appropriate in accordance with Section 8.06(d) of the Merger Agreementall respects, the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; and (ciii) Sellers and Buyer would not enter into this Agreement without the agreement contained 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 obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Parties10.3.

Termination Fee. 3.1 If this Agreement is validly terminated by Seller pursuant to (A) Section 8.1(g), (B) Section 8.1(c), or (C) Section 8.1(e) and at the Merger is not consummated and the Parent Termination Fee becomes payable by Parent time of such termination pursuant to Section 8.06(b8.1(e) of Seller had the Merger Agreement, and any party hereto is a Defaulting Party right to validly terminate this Agreement pursuant to (as defined belowx) Section 8.1(c), notwithstanding anything provided under or (y) Section 8.1(g), then Purchaser will pay the Limited Guaranties, (a) the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay Target Companies an amount equal to 5% of the Parent Enterprise Value (the “Termination Fee to Parent Fee”) by wire transfer of same day fund immediately available funds within one three (13) Business Day following Days after the termination date of the Merger Agreement pursuant such termination. Without limiting Seller’s right to Section 8.03(a) or Section 8.03(b) thereof; (b) in the event any obtain an award 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 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 Target Companies commence a Claim that results in a final judgment (and following the expiration of all fees and times for appellate review) in favor of the Target Companies or their Affiliates for the payment of the Termination Fee, Purchaser shall pay (x) to the Target Companies their out-of-pocket fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred byin connection with such Claim (the “Termination Fee Claim Expenses”) and (y) to the Target Companies the Termination Fee, plus interest at the prime rate of interest reported in The Wall Street Journal in effect on the date such Non-Defaulting Party payment was required to be made hereunder through the date of payment (such interest payment, together with the Termination Fee Claim Expenses, the “Enforcement Costs”). Notwithstanding anything to the contrary set forth herein, but subject in all respects to the provisions of Section 10.16(b), Seller and the Target Companies may pursue the remedies permitted pursuant to Section 10.16 at any time, and any election to pursue such remedies shall in no way modify or the respective Guarantor) under such Limited Guarantee (amend the obligations of Purchaser to pay the Defaulting Party under Termination Fee and/or the Enforcement Costs pursuant to this Section 3.1, collectively, 8.4. Purchaser acknowledge and agree that the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion agreements contained in this Section 8.4 are an integral part of the Default Obligations. A Defaulting Party’s “Pro Rata Portion” for the purposes of this Section 3.1 is a fractiontransactions contemplated hereby, the numerator of which is such Defaulting Party’s Contemplated Ownership Percentage and that without these agreements, Seller and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting PartiesTarget Companies would not have entered into this Agreement.

Termination Fee. 3.1 If Notwithstanding anything in this Agreement to the Merger contrary, in the event this Agreement is not consummated and the Parent Termination Fee becomes payable by Parent terminated (i) pursuant to Section 8.06(b) 8.1(b), but only in the event that one or more of the Merger Agreementconditions set forth in Section 7.1(a) or Section 7.1(b) has not been satisfied (and, and any party hereto in the case of Section 7.1(b), only if the failure to satisfy such condition is a Defaulting Party result of an Order or injunction pursuant to an Antitrust Law) or Section 8.1(e) if such Order or Law is, or is pursuant to, an Antitrust Law and (ii) at the time of such termination, all other conditions set forth in Sections 7.1, 7.2 and 7.3 shall have been satisfied or waived (as defined belowif the date of termination were the Closing Date), notwithstanding anything provided under then the Limited GuarantiesBuyer shall promptly, but in no event later than three (a3) Business Days after the Defaulting Party shall be responsible for date of such termination, pay the entire Parent Sellers a termination fee of $70,000,000 (the Termination Fee payable by Parent under Section 8.06(bFee) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent in cash by wire transfer of same day fund within one (1) Business Day following immediately available funds. The Buyer acknowledges and agrees that the termination agreements contained in this Section 8.3 are an integral part of the Merger Agreement transactions contemplated hereby and that, without this right, the Sellers would not enter into this Agreement; accordingly, if the Buyer fails to promptly pay the amount due pursuant to this Section 8.03(a) 8.3 and in order to obtain such payment the Sellers commence an Action that results in a judgment against the Buyer for the fee set forth in this Section 8.3 or Section 8.03(b) thereof; any portion of such fee, the Buyer shall pay to the Sellers their costs and expenses (bincluding attorneys’ fees) in connection with such Action, together with interest on the event any amount of the Company’s fees and expenses shall become payable by Parent fee at the Interest Rate in effect on the date such payment was required to be made through the date of payment. Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated in accordance with Section 8.06(d) its terms and such termination gives rise to the obligation of the Merger Buyer to pay the Termination Fee pursuant to this Section 8.3 and the Buyer shall have paid the Termination Fee, the sole and exclusive remedy of the Sellers and its Affiliates against the Buyer and its Subsidiaries and their respective officers, directors and Affiliates for any Losses resulting from, arising out of, or incurred in connection with, this Agreement (including termination thereof) shall be the Termination Fee, and no Person shall have any rights or claims against the Buyer and its Subsidiaries and their respective officers, directors and Affiliates under this Agreement, the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; and (c) whether at law or equity, in the event that a Non-Defaulting Party’s (contract, in tort 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 byotherwise, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations none of the Defaulting Party under Buyer and its Subsidiaries and their respective officers, directors and Affiliates shall have any further liability or obligation resulting from, arising out of, or incurred in connection with, this Section 3.1, collectively, the “Default Obligations”). 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 PartiesAgreement.

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) In the Defaulting Party shall be responsible for event that either: (X) the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal MGM Entities are entitled to the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day following the termination of the Merger terminate this Agreement pursuant to Section 8.03(a10.1(d) hereof, or (Y) (i) the Closing has not occurred by the Outside Closing Date, and (ii) each of the Closing conditions set forth in Section 7.1 have been satisfied or waived by Purchaser or would have been satisfied but for Purchaser’s failure to use its Commercially Reasonable Efforts (or a higher standard if a higher is expressly contemplated hereby) 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 Purchaser failing to use its Commercially Reasonable Efforts (or a higher standard if a higher is expressly contemplated hereby) to perform its respective obligations under this Agreement in accordance with the terms and conditions hereof, and (iv) the MGM Entities are not otherwise in breach or default hereunder, then in either such event (X) or (Y) the MGM Entities shall have the right, as their 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 (which shall occur automatically on such fifth Business Day unless agreed to otherwise by the Parties in writing) Purchaser shall pay, or cause to be paid, in same day funds to Seller, the sum of Twenty Five Million Dollars ($25,000,000) (the “Seller Termination Fee”). Only one Seller Termination Fee shall be payable to Seller regardless of the circumstances. In the event Seller receives payment of the Seller 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 its Affiliates, for Purchaser’s failure to consummate the transactions contemplated by this Agreement. The obligation of Purchaser to pay the Seller Termination Fee pursuant to this Section 8.03(b6.14(a) thereof; is guaranteed by Purchaser Parent pursuant to the Purchaser Guaranty. Subject to the occurrence of the matters set forth in subsections (bX) or (Y)(i), (ii) and (iii) 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 any the sale of the CompanyEquity Interests to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser’s fees failure to close, 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) Seller’s actual damages in the event that the sale of the Equity Interests to Purchaser as contemplated by this Agreement is not consummated as a Non-Defaulting Partyresult of Purchaser’s (failure to close would be difficult 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 byimpractical to determine, and all fees and out-of-pocket expenses incurred by, such Non-Defaulting Party (or the respective Guarantor) under such Limited Guarantee (the obligations Seller Termination Fee represents a reasonable estimate of the Defaulting Party under this Section 3.1, collectively, harm likely to be suffered by Seller in the “Default Obligations”). If there is more than one Defaulting Party, each Defaulting Party shall be responsible for its Pro Rata Portion event the sale of the Default Obligations. A Defaulting PartyEquity Interests to Purchaser as contemplated by this Agreement is not consummated as a result of Purchaser’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 Partiesfailure to close.

Termination Fee. 3.1 (a) If the Merger is not consummated and the Parent Termination Fee becomes payable by Parent Seller validly terminates this Agreement pursuant to Section 8.06(b8.1(c), Section 8.1(d), Section 8.1(f) or Section 8.1(g) or if Buyer terminates this Agreement pursuant to Section 8.1(h) or Section 8.1(d) following Buyer’s election to exercise the Buyer Closing Extension, then Seller shall receive as a termination fee (the “Termination Fee”) the Escrow Deposit (which is being released to Seller upon the execution and delivery of this Agreement) and the Second Escrow Deposit, in each case free and clear of any claim by Buyer The portion of the Merger Agreement, and any party hereto is a Defaulting Party (as defined below), notwithstanding anything provided under Termination Fee not paid through Seller’s permanent retention of the Limited Guaranties, (a) the Defaulting Party Escrow Deposit shall be responsible for paid from the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent Second Escrow Deposit by wire transfer of same day fund immediately available funds to an account of the Seller specified in writing by the Seller, such payment to be made within one five (15) Business Day following the termination Days of the Merger Seller’s delivery of notice of such termination by Buyer or Seller. If Seller validly terminates this Agreement pursuant to Section 8.03(a8.1(i), or Buyer validly terminates this Agreement pursuant to Section 8.1(b), Section 8.1(d) (prior to Buyer’s election to exercise the Buyer Closing Extension) or Section 8.03(b8.1(e) thereof; (bprior to Buyer’s election to exercise the Buyer Closing Extension), or this Agreement is terminated pursuant to Section 8.1(a), Buyer shall not be required to pay the Termination Fee and Buyer shall receive the Second Escrow Deposit by wire transfer of immediately available funds to an account of Buyer specified in writing by Buyer, such payment to be made within five (5) in the event any Business Days of the CompanySeller’s fees and expenses shall become payable delivery of notice of such termination by Parent in accordance with Section 8.06(d) Buyer or Seller. Upon payment of the Merger AgreementTermination Fee, Buyer shall (notwithstanding the Defaulting Party shall be responsible for all such fees and expenses payable by Parent; and (cprovisions of Section 8.4) in have no further liability to the Seller or any other Person with respect to this Agreement or the transactions contemplated hereby. In the event that Buyer pays the Termination Fee pursuant to this Section 8.2, payment of the Termination Fee (including Seller’s permanent retention of the Escrow Deposit) shall be the sole and exclusive remedy of the Seller and any other Person against any Buyer Indemnified Parties and any Committed Lender for any Losses suffered or incurred as a Non-Defaulting Party’s (result of or under this Agreement or the respective Guarantor’s) liabilities under transactions contemplated hereby, including the relevant Limited Guarantee become due failure of the Closing to occur. Simultaneously with the execution and payabledelivery of this Agreement, Buyer is depositing the Defaulting Party shall indemnify such Non-Defaulting Party (or sum of $1,000,000.00 to be held in an escrow account with JPMorgan Chase Bank pursuant to 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 terms of the respective Guarantor) under such Limited Guarantee Escrow Agreement (the obligations of the Defaulting Party under this Section 3.1, collectively, the “Default ObligationsSecond Escrow Deposit”). 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.

Termination Fee. 3.1 If (a) In the Merger event that this Agreement is not consummated and the Parent Termination Fee becomes payable terminated by Parent P&G or Purchaser pursuant to Section 8.06(b8.01(a)(ii) and all of the Merger Agreementconditions to Closing set forth in Sections 7.01 and 7.02 (other than (i) the condition set forth in Section 7.02(e) and (ii) those other conditions that, and any party hereto is a Defaulting Party by their nature, cannot be satisfied until the Closing Date, but, in the case of clause (as defined belowii), notwithstanding anything provided under which conditions would be satisfied if the Limited GuarantiesClosing Date were the date of such termination) have been satisfied or waived on or prior to the date of such termination (such a termination described above, (a) the Defaulting Party a “Financing Condition Termination”), then Purchaser shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay an amount to P&G a termination fee equal to $93,000,000 (the Parent “Termination Fee to Parent Fee”) by wire transfer of same day fund immediately available funds to an account designated in writing by P&G. The Termination Fee shall be payable within one (1) two Business Day following the Days after written notice of such termination of the Merger Agreement pursuant to Section 8.03(a) or Section 8.03(b) thereof; (b) in the event any case of a termination by P&G and concurrently with such termination in the Company’s fees and expenses shall become payable case of a termination 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) Purchaser. P&G agrees that in the event that the Termination Fee is paid to P&G pursuant to this Section 8.03, notwithstanding anything in this Agreement to the contrary, the payment of such Termination Fee shall be the sole and exclusive remedy of P&G and its Related Persons against Purchaser or any of its Related Persons for, and in no event shall P&G or any of its Related Persons seek to recover any other money damages or seek any other remedy based on a Non-Defaulting Party’s claim in law or equity with respect to, (A) any loss suffered as a result of the failure of the Acquisition to be consummated, (B) the termination of this Agreement, (C) any liabilities or obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, in each case, with respect to a Financing Condition Termination and any event related thereto or otherwise in connection with a breach of this Agreement, and upon payment to P&G of the Termination Fee, neither Purchaser nor any Related Person of Purchaser shall have further liability or obligation to P&G or any of its Related Persons relating to or arising out of this Agreement or the respective Guarantor’s) liabilities under transactions contemplated hereby (except as provided in Section 8.02). Notwithstanding the relevant Limited Guarantee become due and payableforegoing, no Termination Fee shall be payable if P&G does not deliver, in advance of the Marketing Period, the Defaulting Party shall indemnify such Non-Defaulting Party (Audited Financial Statements, the Required Interim Financial Statements or the respective Guarantor) other information and cooperation required 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 obligations advance of the Defaulting Party under this Marketing Period pursuant to Section 3.15.05(b), collectively, or if the “Default Obligations”failure of the condition set forth in Section 7.02(e) to be satisfied is otherwise a result of P&G’s material breach of Section 5.05(b). 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 For purposes of this Section 3.1 is 8.03(a), “Related Person” means, with respect to a fractionparty, any former, current or future, direct or indirect, stockholder, director, officer, employee, agent, Representative, Affiliate or assignee of such party, or any former, current or future director, officer, employee, agent, Representative, Affiliate or assignee of any of 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 Partiesforegoing.

Termination Fee. 3.1 If In 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, event that (a) a proposal with respect to a transaction relating to the Defaulting Party shall be responsible for the entire Parent Termination Fee payable by Parent under Section 8.06(b) acquisition of a material portion of the Merger Agreement and shall promptly pay an amount equal to the Parent Termination Fee to Parent by wire transfer of same day fund within one (1) Business Day following the termination capital stock of the Merger Agreement pursuant to Section 8.03(a) Company or Section 8.03(b) thereof; (b) in the event any of the Company’s fees '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 expenses shall become payable by Parent in accordance with Section 8.06(d) prior to the date of the Merger termination of this Agreement, (b) this agreement is thereafter terminated by the Defaulting Party shall be responsible for all such fees and expenses payable Company pursuant to Section 13.1(e) or by Parent; the Purchasers pursuant to Section 13.1(f), and (c) within six (6) months following such termination an Acquisition Transaction is consummated or the Company enters into an agreement relating thereto, then in any such event, the Company shall pay the Purchasers $950,000.00 in same day funds (the "TERMINATION FEE") plus reimbursement of each Purchaser's expenses incurred in connection with the Transactions contemplated hereby, including, without limitation, all due diligence expenses and expenses of counsel; PROVIDED, that if the warrants have been issued pursuant to Section 9.1(s) of the Credit Agreement in consideration for certain guarantees provided in connection therewith, the Termination Fee shall be $750,000. The Termination Fee shall be paid to the respective Purchasers pro rata based on the number of shares of Common Stock to be purchased by the respective Purchasers hereunder as set forth on their respective signature pages hereto; PROVIDED, that if the warrants referred to in the event that a Non-Defaulting Party’s proviso of the preceding sentence have not been issued, the Termination Fee shall be paid as follows: (or i) $200,000 of the Termination Fee shall be paid to SAP prior to any pro rata allocation among the Purchasers, and (ii) the remaining portion of the Termination Fee shall be paid to the respective Guarantor’s) liabilities under Purchasers pro rata based on the relevant Limited Guarantee become due and payable, the Defaulting Party shall indemnify such Non-Defaulting Party (or number of shares of Common Stock to be purchased by 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 Purchasers hereunder as set forth on their respective Guarantor) under such Limited Guarantee (the obligations of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). 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 Partiessignature pages hereto.

Termination Fee. 3.1 If In the Merger is not consummated and event that Parent Group on the Parent Termination Fee becomes payable one hand or PURO on the other refuses to consummate the transactions contemplated by Parent this Agreement after the execution of the this Agreement, other than through the termination of this Agreement pursuant to Section 8.06(b) Sections 9.1, 9.2 , 9.3 or 9.4 hereof, as applicable, such party shall be in breach of this Agreement (the Merger Agreement, and any party hereto is a Defaulting Party (as defined below“Breaching Party”), notwithstanding anything provided under the Limited Guaranties, (a) Breaching Party on one hand shall pay to the Defaulting non-Breaching Party shall be responsible for on the entire Parent Termination Fee payable by Parent under Section 8.06(b) of the Merger Agreement and shall promptly pay other a termination fee in an amount equal to Two Million Dollars ($2,000,000) (the Parent “Termination Fee”); provided that if a Termination Fee to Parent by wire transfer of same day fund within one (1as defined in the LED Supply Merger Agreement) Business Day following the termination of the Merger Agreement is paid 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 LED Supply Merger Agreement, the Defaulting Termination Fee as contemplated in this Section 9.7 shall not be payable (the intent being that a Termination Fee (as defined herein or in the LED Supply Merger Agreement) shall be payable only once pursuant to this Agreement or the LED Supply Merger Agreement and that the aggregate amount recoverable in respect of a termination fee pursuant to this Section 9.7 and Section 9.7 of the LED Supply Merger Agreement shall be limited to an aggregate of $2,000,000). Any Termination Fee shall be paid by a wire transfer of immediately available funds to an account designated by the non-Breaching Party on the Business day immediately following the date of termination of this Agreement. The parties acknowledge and agree that the agreements contained in this Section 9.7 are an integral part of the transactions contemplated by this Agreement, and without these agreements, the parties would not enter into this Agreement; accordingly, if the non-Breaching Party fails to timely pay the Termination Fee pursuant to this Section 9.7, and in order to obtain payment, the non-Breaching Party commences any action, suit or proceedings which results in a judgment against the Breaching Party, the Breaching Party shall be responsible for all such fees pay the non-Breaching Party its reasonable 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 documented out-of-pocket costs and expenses incurred by(including reasonable and documented attorneys’ fees) in connection with such action, suit or proceeding. The parties agree that (except in the case of Fraud or any willful breach of any representation, warranty or covenant or agreement contained herein occurring prior to such Nontermination and except for the parties’ rights under Article 10), upon termination of this Agreement under the circumstances that entitle the non-Defaulting Breaching Party to the Termination Fee, the Termination Fee shall be the sole and exclusive remedy available to the non-Breaching Party and its Affiliates against the non-Breaching Party and its Affiliates for all Losses suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon the payment of the Termination Fee in such circumstances (except in the case of Fraud or any willful breach of any representation, warranty or covenant or agreement contained herein occurring prior to such termination and except for the parties’ rights under Article 10) the Breaching Party shall have no further liability or obligation relating to or arising out of this Agreement or the respective Guarantor) under such Limited Guarantee (transactions contemplated hereby; provided, that any Termination Fee received by the obligations non-Breaching Party shall reduce the amount of the Defaulting Party under this Section 3.1, collectively, the “Default Obligations”). If there is more than one Defaulting damages payable by any Breaching Party, each Defaulting Party shall be responsible for its Pro Rata Portion if any, in respect 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 any such Defaulting Party’s Contemplated Ownership Percentage and the denominator of which is the aggregated Contemplated Ownership Percentage of all Defaulting PartiesFraud or willful breach.